Hahn v. Schmidt

Sharpstein, J. This is an appeal from a judgment and from an order denying the plaintiff’s motion for a new trial in an action for malicious prosecution.

There are hut two exceptions before us.

1. To that portion of the charge of the court contained in the following extract: —

“Now, I instruct you'that this complaint, on the face of it, not only does not state facts which constitute the crime of forgery, or any crime, it merely shows that the plaintiff signed an [285]acceptance thus: Joseph Schmidt, per William Hahn; and this in law does not constitute a forgery. Yet the facts stated in the complaint, although not constituting the crime of forgery, may be true, and if made to the justice in good faith, and the justice, upon the facts so stated, adjudged the offense to be forgery, and issued his warrant under which the arrest was made, then, under such circumstances, the defendant would not be liable, and you are, therefore, instructed that if you find that the facts stated in the affidavit or the complaint upon which the plaintiff was prosecuted were true, and’ defendant at the time believed the facts to be true, then the defendant cannot be held liable in this action, even though such facts do not technically constitute a crime. Do not misapprehend my instruction. You must find that the charge made or facts stated are true, and that defendant so knew or believed, before this complaint can form a defense.

“ In determining whether this complaint was in fact true, you should consider whether, in making the complaint, the defendant suppressed any facts shown by the evidence to be known by him. In this connection you may consider the restriction placed upon the plaintiff in the power of attorney, which rendered the acceptance void, and also the evidence on the subject of the circumstances under which the acceptance was made.”

2. To the refusal of the court to give in this connection an instruction, asked by the plaintiff, of Avhich the folloAving is a copy:—

“ That in order for such complaint to be made in good faith by Schmidt, he must have supposed that at the time he made it he Avas responsible upon the acceptance, and that it charged him Avith the payment of the money.” .«

The complaint referred to is in the form of an affidavit made by the defendant before a justice of the peace, Avho thereupon issued a Avarrant for the arrest of the plaintiff, and upon AA'hich he was arrested and brought before the justice on a charge of forgery. The charge Avas dismissed.