24 Tenn. 357 | Tenn. | 1844
delivered the opinion of the court.
This is an action on the case. The declaration has two counts; the one for a malicious prosecution, and the other for slanderous words.
The bill of exceptions show the following facts: — The plaintiff is the natural son of the defendant, and the defendant has a son named Henry, familiarly called by the witnesses, Hal Hawkins. The defendant owned a roan horse, which his son Hal Hawkins usually rode, and called his own; the neighbors called him Hal’s horse; and the defendant some times called him Hal’s horse, and some times claimed him as his own.
Hal Hawkins, in opposition to his father’s command, took the roan horse from the old man’s house, and loaned him to the plaintiff to ride to Columbia. The plaintiff lived at S. Rainwater’s, where Hal Hawkins kept the roan horse in a pen in the field, with two horses which the plaintiff owned and kept
While the horses were at Rainwater’s, the defendant went there, and enquired of Rainwater if he knew where the roan horse was. Rainwater told him, that Joseph Hall had borrowed him from Hal Hawkins, and had rode him to Columbia. The defendant then requested him to tell the plaintiff to return the horse to him. The plaintiff did not deliver the horse to the defendant, but returned him to Hal Hawkins, who kept him in the pen several days, and then left in the night with Hall, the plaintiff, for Illinois, where Hal HJawkins left the roan horse. When they came back from Illinois, the defendant took out a warrant against both the plaintiff and his son, Hal Hawkins, on a charge of stealing the roan horse. When they were brought to trial, Hal Hawkins and the defendant compromised, but the plaintiff refused to compromise, and demanded a trial, but the prosecution was dropped.
Before the- warrant was taken out against the plaintiff, the defendant stated the facts to several of his neighbors, and asked their advice; among these persons so consulted, one was a Justice of the Peace, and another had acted in that capacity. He told them that Joe Hall and his son Hal had stolen his roan horse. He said that Hal Hawkins had taken the horse without his consent, and had taken him to Rainwater’s, and that Hall and Hal there kept him concealed for a while in a pen, and af-terwards took him off to Illinois, starting in the night, and came back without him. While making this narrative, he wept, and said he had come to ask advice. He was told it was a case of horse stealing, and he then took out a warrant.
The charge of the court sets forth correctly, the principles of law which should govern the jury, in reference to both counts of the declaration, and we need not recite its terms.
The jury found for the defendant, and the plaintiff appealed to this court. The question now is, whether there is any evidence in this record, upon which the verdict of the jury can rest.
In this case, the jury have found for the defendant; and although we think, there was no probable cause for the prosecution, yet we are not prepared to say that the presumption of malice has not been sufficiently repelled. The defendant seems to have been a very ignorant old man, and having been aggrieved by the misconduct of these young men, he applied for advice to persons he had a. right to suppose were qualified to advise him. He stated the facts fairly, and.shed tears while talking about it. These were facts the jurywere authorized to take into view in determining the question of malice.
Upon the whole, we think it is not a case in which this court should grant a new trial, for although the evidence may have justified a verdict for the plaintiff, yet it is not such a case, where there is no proof upon which the verdict can rest, or, as this court has sometimes said, where there is a great preponderance of proof against the verdict.
Affirm the judgment.