Fay v. . O'Neill

The objection by defendant to the question put by plaintiff's counsel to the plaintiff, as a witness, "was what you swore to on that occasion true?" was properly overruled. The malicious arrest of the plaintiff by the procurement of the defendant, for the crime of perjury alleged to have been committed by the plaintiff upon a trial in the Marine Court, is the ground of the action. The "occasion" referred to in this question was the trial in the Marine Court. *Page 13 There can be no doubt that the question of the plaintiff's guilt or innocence of the charge made against him was involved in the case, for if the charge was true, there could be no want of probable cause. The fact then which this question called for was clearly pertinent and material. The objection is not to the general form of the question but to its substance. No error was committed in overruling the objection. The defendant's motion for a nonsuit was properly denied. The evidence proved, or tended to prove, all that it was necessary to prove to maintain the action. It was sufficiently shown that the prosecution was at an end. The complaint was dismissed by the magistrate "in consequence of the complainant not appearing to prosecute at the time to which the case was adjourned." This was a sufficient termination of the prosecution. (Clark v.Cleveland, 6 Hill, 344; Secor v. Babcock, 2 Johns., 203;Purcell v. Mac Namara, 9 East., 361; Burhans v. Sanford, 19 Wend., 417; Watkins v. Lee, 5 Mees. Wels., 270.) The recognizance which appears in the case as part of the proceedings before the justice, or rather appended to such proceedings, by which the plaintiff was bound to appear at the next Court of General Sessions, is entirely inconsistent with the entries in the minutes showing the adjournments, and that the plaintiff was bailed to appear for examination, and was at the adjourned day discharged. It was never certified to the Court of General Sessions, and was manifestly never used in any way. It comes into the case after the certificate of the clerk of the court authenticating the proceedings in court only, without any authentication, and is not made the ground of any application on the trial. It should be regarded as a paper having no significance. The charge to the jury contained the substance of all the defendant's requests to charge, so far as they were legally correct. I am of the opinion that the judgment appealed from should be affirmed. *Page 14