Marks v. Gray

Tenney, C. J. The action of Nicholas Gray against George Snow, David M. Hooper and Elisha Marks, was trespass for a breach of the close, and cutting and carrying away the grass growing thereon. The defendants pleaded jointly [89] the general issue, and filed a brief statement alleging that the seizin and possession of the land was in Snow, and that Marks had a license from Gray. From the writ, pleadings and agreement, signed by the attorneys for the parties in that action, we infer that the alleged trespass was upon land on which Snow had attempted to levy an execution in his favor against one Albion P. Gray. The basis of this suit is alleged to be, that Marks, the plaintiff therein, was made a party defendant, in the other action above referred to, for the purpose of preventing him from being a witness in the trial of the same. The settlement of that action, by the agreement, must be treated as made by all the parties thereto; and the defendants in the same, consent to the payment of the sum of eight dollars for the hay claimed by the defendant Gray. Whether the circumstances of a particular case, afford to the accuser a probable cause for making the accusation, is a question of law, which arises upon the facts established in evidence. 2 Stark. Ev. 912. When the defendants in the original action so far admitted the charge in the writ as to agree to allow, in the settlement, a certain sum on account of the trespass, and the action was disposed of according to that settlement, it cannot with propriety be contended by them that there was a want of probable cause. Plaintiff nonsuit. Rice, Appleton and Goodenow, J. J., concurred.