McBurney v. Wheelan

McCay, Judge. We think the charge as asked ought to have been given. If the party had only the purpose indicated, that was sufficient. If he intended oppression by a misuse of the process any way, the jury were authorized, under this charge, to find against him, and we think the judge was too exacting in refusing the charge, because it did not also put the hypothesis of using the process in a legal way. Besides, it was competent for the court to have explained to the jury that an illegal use of the process would be just as illegal as an illegal suing out. As the case stood, we feel that the charge refused ought to have been given, and that the’ refusal was an injury to the plaintiff in error. We reverse the judgment the more [474] readily because our opinion is, that under the evidence the jury have given heavy damages, and such as the evidence must be strained to sustain. Judgment reversed.