Flickinger v. Wagner

Robinson, J., delivered the opinion of the Court. Proceedings were instituted before a justice of the peace by Smith, assignee in bankruptcy, of the appellant, to ⁵⁹⁸ recover of the appellee, a claim alleged to he due the bankrupt’s estate. At the trial the appellant was a witness, and testified that the appellee had the use of witness’ cart for about two weeks, and his wagon one day for the purpose of hauling bricks, charges for which, amounting to three dollars, constituted part of the account' claimed to be due by the appellee. The appellant was subsequently arrested at the instance of the appellee, charged with having committed perjury in testifying before the justice of the peace, that the appellee had the use of the appellant’s cart and wagon, and this suit is brought to recover damages of the appellee for malicious prosecution.

Twelve exceptions are taken to the rulings of the Court below, in regard to the admissibility of evidence, and the thirteenth to the several prayers offered by the appellee, and granted by the Court. 1st Exception. — The appellant, plaintiff below, offered to prove by Smith, the assignee in bankruptcj, the amount claimed by the latter, to be due from the appellee in the proceedings before the justice of the peace, and the several credits to which he admitted the appellee was entitled. This evidence seems to us to be wholly irrelevant, and was therefore properly excluded. The question before the jury was whether the defendant was actuated by malice, and want of reasonable or probable cause, in making the charge of perjury against the plaintiff, and the amount claimed by the assignee in bankruptcy in the suit- before the justice, tended in no manner to prove the issues presented by the pleadings. 2nd Exception. — We see no objection to the evidence offered by the plaintiff in this exception. The defendant had proved by Doct.

W. H. Wagner, his brother, that-subsequent to the date of the charges for the use of plaintiff’s cart and wagon, there was a settlement between the witness and the plaintiff, of the accounts which the latter ⁵⁹⁹ had against the defendant, — that the only item in the account presented hy the plaintiff, was a charge for fifteen thousand bricks at $8t2/ó per thousand. That this account was settled in part by a note of the plaintiff held hy the defendant as assignee of Waltz, upon which the sum of $86 was due, and the balance paid by claims which the witness held against the defendant — that the plaintiff said he held no other claims against the defendant, and that on the same day, or the day after the settlement, the witness informed the defendant that he had settled all claims which the plaintiff had against him. The plaintiff, on cross-examination, then asked the witness whether anything was due on the Waltz note, and stated to the Court, that he expected to prove facts and circumstances from which the jury might infer that there was no such settlement as that testified to by the witness; and that on the 16th of August immediately following this supposed settlement, there was a meeting of the creditors of the plaintiff before the register in bankruptcy, and at which an assignee in bankruptcy of the plaintiff was to he elected. That the defendant was present at that- meeting, and produced the Waltz note before the register, and proved it as against the estate of the plaintiff, and offered to vote on it for an assignee of the bankrupt’s estate.

Under such circumstances and for such purposes, we think the question was a proper one, and the Court erred in refusing to permit the witness to answer the same. 3rd Exception. — It was also competent for the plaintiff to prove that the defendant was present at the meeting of creditors, and voted for an assignee of the bankrupt’s estate. But it appears that the witness was not present at such meeting, and did not know who voted for the assignee, except what he had heard from others, and the objection to his testimony in this respect, was properly sustained. 4th Exception. — The question whether the plaintiff was indebted to the defendant at the time of the trial before ⁶⁰⁰ the justice of the peace, was of course irrelevant, and therefore properly excluded. 5th Exception. — The Court erred in excluding the testimony offered in this exception. For the reasons assigned in considering the second exception, the plaintiff had the right to ask the witness, Wagner, whether the Waltz note was in fact cancelled, hy the credit of $86 applied to the plaintiff’s account for bricks. 6th Exception. — We find no error in this exception. The answer to the inquiry proposed in this exception would have been nothing more or less than the opinion of the witness, and therefore inadmissible.

We see no objection to the evidence offered under the seventh, eighth and ninth exceptions Tbe defendant was having a house built, and in the suit against him before the justice of the peace, he was charged with having the use of the plaintiff’s cart two weeks, and wagon one day, in hauling bricks, &c., for this house. Now, for the purpose of showing the circumstances which induced the defendant t.o believe that the plaintiff had testified falsely before the justice of the peace, it was clearly competent for him to prove hy Murphy, that under witness’ contract with the defendant, he was obliged to haul the bricks, and that he borrowed and used the plaintiff's wagon for that purpose. The objection to the evidence offered in the tenth exception, was properly overruled. The motive which operated upon and induced the defendant to have the plaintiff arrested on the charge of perjury, was directly involved in the issues before the jury, and being a competent witness under the Evidence Act, the