Usher v. Whitinger

Scott, J. This affidavit was good evidence to show, that the defendant instituted the prosecution and procured the arrest; and, for this purpose, it ought to have been admitted (1). Per Curiam. The judgment is reversed, and the verdict set aside, with costs. Cause remanded for further proceedings. Footnotes [(1)] The substance of the affidavit need only be stated in the declaration. Thus, where the declaration averred that the defendant had charged the plaintiff with' felony; and the information before the magistrate alleged that [251] certain goods had been stolen from the defendant, and that he suspected and believed, and had good reason to suspect and believe, thatthe plaintiff had stolen them; it was held, Bayley, J. dissentiente, that the information supported the averment. Davis v. Noah, 1 Stark. R. 377. But an averment that larceny had been charged, is not supported by proving a charge to have been made, amounting only to a tortious conversion; Leigh v. Webb, 3 Esp. R. 165; nor by the production of an affidavit, alleging only a concealing of the goods. M'Neely v. Driskill, May term, 1829, post. Vide 2 Phill. Ev. 114, 115. — 2 Stark. Ev. 908, 9.