Beaven v. Phillips

JUDGE HOLT delivered the opinion of the court. The appellant, Richard Beaven, was indicted upon the charge of obtaining goods upon false pretenses-from Phillips & Bro., and after three juries had. failed to agree the indictment was, for some reason not appearing, quashed; and the grand jury failing-to find another indictment, he was discharged. He then brought this action for malicious prosecution against James Gf. Phillips, who was .a member of the-above-named firm. The assignment of errors neither particularizes the-instructions, to the giving of which 'the appellant-objected, nor those asked by him, and refused; but the general assignment that the court erred in the-instructions it gave to the jury, and in refusing, those asked by the appellant, is sufficient to call the attention.of this court to this alleged error, and. a more strict construction of the rule would often result in injustice. The defendant, by an amended rejoinder, alleged, that the plaintiff had never paid for or returned the-goods he had obtained from Phillips & Bro., and it is urged that the court erred in overruling a demurrer to it; but the appellant did not except to the' ruling, and if he had, yet as no instruction based upon it was given, the action of the court, even if erroneous, was not prejudicial to him. The court rejected all the instructions offered by [90] 'both parties, and gave five in lieu thereof. It is not necessary to review them, or those asked by appellant, in detail. The bill of exceptions does not state the testimony, nor the facts which the testimony conduced to prove. It only says, that “the evidence in the case was conflicting, and conduced to show the facts respectively •claimed by the parties in the pleadings.” The Code of Practice requires that the bill must ■.state the material facts which the evidence conduces to prove, and that a party shall not state his evidence in his pleadings. He must state a cause of .action or a ground of defense, but not a detail of the facts. Indeed, it may often be a matter of dispute as to what is really in issue under the pleadings, or what facts are therein stated. In this instance the bill of exceptions can not, in ■our opinion, be regarded as stating the material facts which the testimony tended to show; to hold otherwise would countenance too loose a practice, and it, therefore, results that we can not say that the court ■erred in rejecting any or all of the instructions offered by the' appellant, because, even granting that they were proper under the pleadings, yet, for aught rshown, there may have been no testimony whatever to support them; and it also results that the in.structions which were given can not be viewed by the light of the testimony, and they seem to be supported by the pleadings; but even if they were not, and were erroneous when considered upon the pleadings, yet we could not hold that the appellant was prejudiced thereby, because he was the plaintiff, and [91] lie may have utterly failed to show that he was entitled to any relief whatever. Judgment affirmed.