Reed v. Loosemore

Opinion by Mb. Justice McCollum, The defendants prepared and presented fifteen points to be answered by the learned judge of the court below; seven of them were affirmed without qualification, five were refused because they included questions of fact for the determination of the jury, and three were refused without explanation or com [270] ment. Four of the points refused constitute the first, second, third and fourth assignments of error. The remaining assignments are founded upon excerpts from the charge. In determining whether the assignments of error should be sustained we must have recourse to the testimony in the case. It is noticeable at the outset of our examination of the testimony that no exceptions to it were taken by the defendants. This omission tends to show that they did not regard it as clearly inadmissible or inapplicable to the questions of fact to which it was directed. It may be said in this connection that a careful scrutiny and consideration of the testimony has satisfied us of its relevancy, and that the defendants exhibited good judgment in declining to take exceptions to it. No erroneous instructions referring to malice and probable cause appear in the charge, and all the instructions relating to them and appearing therein are in harmony with settled law. Nothing appears in the charge as to other matters which can be justly designated as error. The same may be said of the answers to the points which were refused. . The relation of Loosemore to Nelson Morris & Company, the suit of the latter against the Home Supply Company for the recovery of the debt owing to it, the communications between Loosemore and the attorney of Nelson Morris & Company together with Loosemore’s prosecution of Reed on a charge of false representation, were all matters for the consideration of a jury on the trial of the case at bar. Another matter pertinent to the questions of fact involved was the disposition of the suit against Reed in which the verdict was in his favor, and the costs of prosecution were put upon Loosemore, who admitted that he never paid any of the costs or attorney fees, and alleged that while the costs were paid he did not know who paid them.: As the debt sued for was the property of Nelson Morris & Company, and Loosemore had no interest in it except such as an employee lias in the affairs of his employer, his prosecution of Reed in the court of quarter sessions, without suggestion or direction from his employers or their attorney, was an extraordinary proceeding, and especially so when it is conceded that the costs were paid by other parties. For the .reasons stated herein we dismiss all of the assignments. ■ ■ ■ ■ Judgment affirmed.