Rogers v. Tillman

Blandford, Justice. There are several exceptions taken by the plaintiff to the decisions and rulings of the court below in this case. (1.) The defendant offered an affidavit of illegality and verdict and judgment thereon in Harris superior court between these same parties, which was objected to by plaintiff, upon (he ground that the same had become a record in Harris superior court, but admitted, at the same time, that the papers offered were original. The court overruled this objection, and this is the first error assigned. (2.) The court charged the jury, “that one man may prosecute another for what he believes to be a violation of the law, and not be liable for damages for so doing; to render him liable, he must do it maliciously and without probable cause; and unless he does this, both concurring, he would not be liable, and the plaintiff could not recover.” These are the main errors complained of. 1. The first assignment of error involves a practice which we do not approve. The carrying original papers and records from one court to another should be condemned and checked by the judges of the superior court, yet, as-in this case, where the original record was offered in evidence, it being admitted that the same was the original record, it was properly admitted in evidence; a certified copy of this record could not have been higher or better evidence than the original. 2. The next error complained of by the plaintiff was the charge of the court, that to entitle plaintiff to recover damages for malicious prosecution, it must appear that the defendant prosecuted plaintiff maliciously and without probable cause. This charge, it seems to us, is strictly in accordance with the Code, §2982, which declares, “ A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, gives him a cause of action.” 3. This court has frequently held that it would not con [482] sider general exceptions to a charge of the court, but the exception, to be heard here, must specify distinctly the points of the charge excepted to. A careful examination of the whole charge complained of shows that it was legal and fair; that it covered the whole case, including every theory as applicable to plaintiff’s case, a? well as the case of defendant, and we are satisfied that no injustice has been done to either party thereby. Judgment affirmed.