33 Tenn. 228 | Tenn. | 1853
delivered the opinion of the court.
This is an appeal in error from the circuit court of Jackson county. The action was for a malicious prosecution, and a recovery of $400 damages.
But the plaintiff withdrew the affidavit of Spurlock, and without that the court allowed proof of the contents of the lost papers to go to the jury. In this we think there is error. Both the plaintiff and the clerk state that the papers were last seen by them in the hands of Spurlock. This rendered it indispensably necessary that the latter should be sworn, and account for their non-production, if in reach of process. 1 Green-leaf, § 558, page Y06-L If this was not necessary, it is easy to see how the valuable and primary rule of
2. It is insisted that there is error in the charge of the court, for which we should reverse. The parts of the charge objected to is in these words: “If the defendant, maliciously and without probable cause, prosecuted the plaintiff upon a peace' warrant, and he was arrested, tried and acquitted on said warrant, the plaintiff would be entitled to recover; that if the plaintiff was tried upon the peace warrant and acquitted, such acquittal would be grima fade evidence of want of probable cause, but might' be rebutted by evidence showing that defendant had reason to fear, and did fear that Lambert would do him some harm or injury.” This is not correct in its application to the facts of the case before the jury. The prosecution, if it may be so called, was successful before the justice of the peace; he decided that the grounds laid were sufficient, and bound Lambert to appear at the nest term of the circuit court, and to keep the peace in the meantime; but when the court came on, he did not see fit to make application to bind him longer, and he was of course discharged. This is the acquittal referred to in the charge, and to which the rule of the law laid down was applied. If a peace warrant be taken out, the defendant arrested, and upon examination of the facts they are found insufficient, and he is discharged, this would be grima, fade evidence of want of probable cause, and when coupled with malice, would sustain the action for malicious prosecution, unless successfully rebutted by showing reasonable grounds for the apprehension of damage to person or- property on which the proceeding was instituted;