Eschbach v. Hurtt ex rel. Applegarth

Miller, J., delivered the opinion of the Court. This is an action for malicious prosecution, brought by the appellee against the appellant. The declaration avers ⁶⁴ in substance, that the defendant falsely and maliciously and without any reasonable or probable cause, charged the plaintiff with having obtained from him four dollars under false pretences, and on this charge, caused him to he arrested, and brought before a justice of the peace, and detained and imprisoned until he was discharged by the magistrate. It then in its allegations respecting damages, avers and charges that by reason of the premises, the plaintiff hath been, and is greatly injured in his credit and reputation, and brought into public scandal, infamy and disgrace ; that he has suffered great anxiety and pain of body and mind; that he has been forced to expend large sums of money in defending himself from this accusation and manifesting his innocence ; that he has been greatly hindered and prevented from following and transacting his lawful necessary affairs and business, and hath been and is otherwise greatly injured in his credit and circumstances.' The plea was non cul., and at the trial, a single exception was taken to the rejection of evidence, which was offered on the part of the defendant. ¡ The question which the defendant’s counsel insist that this exception presents, and which they have argued with great ability is, whether under the declaration in this case, and the issue joined on the plea of not guilty, evidence of the had reputation of the plaintiff for honesty and integrity is admissible, either as tending to show probable cause, or in mitigation of damages ?

The exact question thus discussed, has never been expressly adjudicated in this State, and it must be conceded that elsewhere there is much conflict of authority upon the subject. But we do not propose to review the numerous cases that have been cited in argument, nor to express any opinion as to the admissibility of such evidence, because in our judgment, that question is not presented by the ruling of the Superior Court, to which the defendant excepted. We may observe, however, that the present state of the Eng ⁶⁵ lish adjudications on this subject, is thus laid down in Addison on Torts, (4th Eng. Ed.,) 767 ; “ when the plaintiff in his declaration avers that up to the time of the prosecution by the defendant, he had borne a good character, and claims damages for injury to Ms character, it may be shown on cross-examination of the plaintiff’s witnesses, that he was at the time a man of notoriously bad character.

But where the plaintiff does not in his declaration claim damages in respect of injury to reputation, general evidence of the plaintiff’s character is inadmissible. Such general evidence affords no proof of probable cause for a prosecution.” But as we have said the question is not raised by the exception, and this we shall proceed to show. The record states that the plaintiff, to sustain the issue joined on his part, offered testimony tending to prove that he carried on the business of selling wood and coal by taking orders at No. 2 North street, in Baltimore City, but owned no wood and coal of his own, and that he had been engaged in the business for some ten years : he then offered testimony tending to prove the allegations of the declaration but offered no testimony as to his general reputation. After the plaintiff had closed, the defendant offered to produce testimony tending to prove that the plaintiff’s reputation for credit was bad, and that his reputation for honesty was bad before the said charge was made against him by the defendant, and for this purpose called James Diggs as a witness, and put to him this question, “ Do you know the standing of George W. Hurtt for credit and honesty among the men and parties in the same business with him in this community ?” To this question the plaintiff’s counsel objected and the Court sustained the objection.

The Judge then proceeded to give his reasons for this ruling sustaining the objection to this question, and said the “ gravamen of the action was the false