Brant v. Higgins

• Decision Date: 31 July 1847
• Citation: 10 Mo. 728
• Parties: BRANT v. HIGGINS.
• Court: Missouri Supreme Court

10 Mo. 728

BRANT

v.HIGGINS.

Supreme Court of Missouri.

July Term, 1847.

APPEAL FROM ST. CHARLES CIRCUIT COURT.

GANTT, for Appellant. 1. The seventh instruction asked by plaintiff, and given by the Circuit Court, was erroneous. It confounds the verdict of a jury in a civil case with the refusal of a committing magistrate to hold an accused person to bail, and further directs the jury to infer, not only absence of probable cause, but the existence of corrupt motives in the appellant. 2. The ninth instruction asked for by the plaintiff below, and given, by the court, was erroneous. It could not but mislead the jury, to be told that Brant could have permitted Higgins to go to his child's funeral in custody of the sheriff, without impairing his rights. If the arrest is to be governed by the rules of final process, it was not true at all that Brant could assent to Higgins' discharge, without prejudice. If it is to be governed by the rules regulating mesne process, Brant could not have permitted, &c., for he had no power to forbid. It is error to accompany a correct refusal of an instruction with remarks which may mislead a jury. Beehler v. Coonce, 8 Mo. R. 247. How much more then to give an instruction which cannot fail to have that effect.

TODD, for Appellee. 1. Instructions Nos. 1, 2, 5, 6 and 7 on behalf of Higgins, and Nos. 1, 2, 3 and 4, in behalf of Brant, present the law as fully and as favorably for Brant as the authorities warrant. 2 Barn. & Cres, 693; 9 Eng. Com. L. R. 225; 2 Barn. & Ald. 179; 22 Eng. Com. L. R. 53; 5 Taunt. 277; Starkie on Ev. 489; 8 Mo. R. 339; 12 Pick. 324; 3 Mason's R. 105. As to kind of malice, 2 Saunders on Ev. and Pl. 659; 3 Mason's R. 104. Although a party has cause of action, yet he may be liable in this action by abuse of remedies, and oppression, as by excessive bail. 4 Serg. & Rawle, 23; 9 Ohio R. 105; 2 Tuck. Com. 63; 2 Wilson, 305, per Lord Camden. Acquittal, evidence of want of probable cause, and slight additional evidence only needed on the part of the plaintiff. 6 Bing. 183 (19 Eng. Com. L. R. 47, 50); 8 Mo. R. 339. And a party is less favored in a civil than in a criminal prosecution. 2 Saund. on Ev. and Pl.; 24 Pick. 81, 86. Malice may be inferred from want of probable cause. 5 Taunt. 583; 1 Term R. 544, 545; 9 East, 351; 12 Pick. 81, 87; 3 Mason, 102; 6 Bing. 183 (19 Eng. Com. L. R. 47, 50); 1 Stewart, 19; 2 Tuck. Com 64. 2. Instruction No. 4, as to action of detinue, was rightly given. 3 Blacks Com. 151; 1 Chitty's Pl. 138, 139; 2 Dana's R. 332; 2 Tucker's Com. 80 3. Instruction No. 10, as to action of replevin, was rightly given. Rev Code of Mo. 1835, p. 527, § 1. 4. Instruction No. 9, as to letting Higgins attend the funeral of his child, in the custody of the sheriff, was rightly given 3 Blacks. Com. 290, 415; 2 Saund. R. 61, a. n. 4; 5 Johns. R. 182; 10 Johns. R 420; 2 Rawle, 284. 5. The amount of damages is not excessive, and is no cause for a new trial. 2 Dunlap's Pr. 680; 2 Tidd, 940; 9 Johns. R. 45; 10 Johns. R. 443; 2 Pick. 113, 119; 7 Pick. 82, 85; 16 Pick. 541, 547.6. The remark of one of the jurors was no cause for a new trial. Besides, no exception was taken to their retiring again, after it was made. 5 Mo. R. 525; 14 Pick. 236; 5 Binney, 340; 4 Wash. C. C. R. 32; 2 Blacks. 114; 4 Hen. & Munf. 1, 18, 19, 20, 21, 22; 1 Cowen, 221, 243; 3 Cowen, 355; 5 Taunt. 277. 7. The court properly refused instruction No. 6, of appellant, because not applicable to the evidence.

NAPTON, J.

This was an action for a malicious arrest, brought by Amando Higgins against the appellant, Brant. The suit was commenced in 1844, in St. Louis county, but in consequence of the fact that the judges of the Court of Common Pleas and Circuit Court had been of counsel for the parties, it was removed to St. Charles, and tried there. The plaintiff got a verdict for $4,000, and a judgment thereon. It will be necessary, to an understanding of the points of law on which this case turns, to give a somewhat detailed statement of the testimony.

The plaintiff introduced a record of a suit in detinue, from which it appeared that Brant, on the 27th October, 1842, filed a declaration in detinue against Higgins, alleging the detention of goods specifically enumerated to the value of $3,000. This declaration was accompanied by an affidavit on the part of Brant that the property described in the declaration belonged to him, and that it was worth at least fifteen hundred dollars, and that Higgins unlawfully detained the property from him. A capias issued, and Higgins was arrested on the 27th October, 1842, and finally gave bail in the sum of $3,000, on the 4th of November, 1842. The cause was prosecuted until February, 1844, when a jury was summoned, and the plaintiff took a non-suit. The bill of exceptions taken in this suit of detinue gives the following statement of the occurrences at the trial. The plaintiff (Brant) produced a mortgage from Van Hollis Higgins to himself, which, in consideration of $500 advanced by Brant to the said Van Hollis, conveyed to him, Brant, all the goods, wares and merchandize then in the store occupied by him, the said Van Hollis, and particularly enumerated in a schedule annexed to the deed. It was expressly stated in the deed, that Van Hollis H. was to retain possession and carry on his trade as usual, but that if any other creditor attached, Brant was to take possession. It further appeared from the bill of exceptions, that the plaintiff was compelled to take a non-suit, because of his inability to prove the execution of his mortgage by a subscribing witness. This non-suit was subsequently set aside, and the cause was removed to St. Charles county, where a trial was had, and a verdict rendered for the defendant. No bill of exceptions was taken on this second trial.

J. M. Krum, who had been counsel for Higgins, testified, that he became acquainted with Higgins in the summer of 1842; that in October of that year, he was sent for by Higgins, who was then in jail. He examined the papers in the action of detinue, and explained the character of the action to Higgins, and told him he could get his release by giving bail. Higgins stated that he was a stranger, just set up in business, and it would be difficult to procure bail, and inquired if there was no other way. Withess suggested a habeas corpus, grounded on a supposed defect of the affidavit, and accordingly a habeas corpus was sued out, but proved unsuccessful. The Judge of the Circuit Court was absent, and therefore no attempt was made to reduce the amount of bail required. Witness applied to several persons on behalf of Higgins, but was not successful. After witness had been in jail several days, his child was taken dangerously ill, and for this cause, his exertions were renewed to get bail. Mrs. Higgins had not been informed of his arrest at first; they had not been married long. The child growing worse, propositions for a compromise were made by Higgins. All the parties met at the office of Blair & Gantt; the terms of the compromise were understood to be acceded to, when a paper was handed to witness by Brant's counsel, which purported to be a release from Higgins to Brant of all damages on account of the suit in detinue. The effect of this paper was explained to Higgins by witness, and Higgins refused to sign the paper. Brant insisted, and the whole matter of compromise failed, and Higgins was remanded to jail. The same evening, or the next morning, witness heard of the death of Higgins' child, and communicated the event to Higgins, who was greatly affected, and directed witness to pledge all his property in order to procure bail. This resulted in bail being procured on the 3rd November, 1842, some four or five days after the death of his child. Higgins then was released and attended the funeral of his child. He immediately left St. Louis, and has not since resided in this State.

Sharp, another witness for plaintiff, testified that he was the clerk in the store of Van Hollis Higgins before the sale to Amando Higgins (plaintiff); that Beach's attachment was levied on about $3,000 worth of goods, then in possession of plaintiff; that plaintiff paid the rent of the store to Brant, after the sale from Van Hollis to plaintiff. After the attachment of Beach, the plaintiff continued to do business on the stock remaining, which was worth perhaps $1,200. After the trial upon the interpleader of plaintiff, which terminated favorably to the plaintiff, the goods were returned, and witness was in the act of taking them out of the boxes, when Brant, who lived on the same square, called at the store and claimed the goods as his. High words passed between plaintiff and defendant, and defendant left the store. Witness then, at the request of Higgins, procured a copy of Brant's mortgage, and, in conjunction with a son of Brant, compared the goods in the schedule with those in the store, and found no goods in the store corresponding with those in the schedule, and informed defendant of this. The defendant replied that he claimed all the goods in the store, by virtue of the mortgage; that if they were not the same, they were purchased with the proceeds of the sales of the mortgaged goods. Witness came into the store of Van Hollis H. in February, 1842. About fifteen hundred dollars worth of goods were purchased on credit by Van Hollis of Beach and others, and added to the stock. Witness knew that plaintiff had furnished his brother, Van Hollis, with about fifteen hundred dollars worth of goods, in the fall of 1841. After the death of plaintiff's child, witness made application to defendant, on the part of plaintiff, for permission to plaintiff to attend the funeral in custody of the sheriff. Brant gave witness a note to his counsel, who replied in writing. When this reply of counsel, was carried by witness to Brant, the latter, after reading it, declined giving the desired permission. In the assignment made by Van Hollis to his brother,...