Usher v. Whitinger

1 Blackf. 250, 1823 Ind. LEXIS 9

• Court: Indiana Supreme Court
• Decided: May 13, 1823
• Status: Published

Opinion

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.

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 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.