Usher v. Skidmore

Smith, J. —If the amended petition filed by the plaintiff below, on the 19th February, 1861, did introduce a new and distinct cause of action from that originally sued upon, we are not satisfied that the court erred in ruling out the affidavit, and holding that the plaintiffs’ cause of action was barred by the twelve months’ limitation. (O. & W. Dig., Art. 1333; 7 Tex., 489; 8 Id., 225; Id., 427; 10 Id., 74; Paschal’s Dig., Art. 54, Note 243, p. 108.) But we are of opinion it did not introduce a new cause of action, and was only an amendment of an inaccurate averment of a fact set up in the original petition. (4 Tex., 427; 9 Id., 379; Id., 553; 10 Id., 155.) The affidavit that [622] was in part misdescribed in the original petition did not constitute the plaintiffs’ cause of action, for if that had been all that was done by the defendants, and the prosecution had gone no further, there would have been no cause of action for a malicious prosecution. The cause of action consisted in the injury she sustained by the arrest and confinement in custody under the charge of felony, which cause of action could not be complete until the discharge by the justice of the "peace, on the 28th January, 1860. We do not deem the averment respecting the affidavit at all material, for it only constituted evidence in behalf of the plaintiffs, which they were not bound to set forth in their pleadings, to prove the fact that the prosecution was instituted at her instance. ' That fact might be proved as well by other evidence, for all persons who co-operated with her in setting the prosecution on foot, if without probable cause, would be liable equally with the one who made the affidavit in pursuance of which the warrant of arrest was issued. We are of opinion the court erred in its ruling in respect to limitation and the affidavit, and the judgment is reversed, and the cause Remanded.