Parsons v. Harper

• Decision Date: 28 August 1860
• Citation: 57 Va. 64
• Parties: PARSONS v. HARPER.
• Court: Virginia Supreme Court

57 Va. 64

PARSONS v. HARPER.

Supreme Court of Appeals of Virginia.

August 28, 1860

1. Since the act, Code, ch. 148, § 7, p. 589, counts in trespass may be joined to counts in case in an action on the case.^[a1]

2. In an action on the case for suing out a capias and imprisoning the plaintiff, in an action of slander in which he was defendant, it is not necessary to aver malice or want of probable cause in suing out the capias.

3. In an action on the case for suing out a capias and imprisoning the plaintiff, in an action of slander in which he was the defendant, he may prove as damage sustained by him, the amount of the fee paid by him to counsel for a motion to quash the capias.

4. Where the motives of a party are a material enquiry in a cause, any evidence which tends in any degree to throw light upon them, is not to be rejected, though the court may think it not entitled to much weight with the jury.

5. If a record is offered in evidence, a part of which is objected to by the other party, he must specify the part objected to, or the objection may be properly overruled.

6. In an action on the case for false imprisonment, the whole record of the case in which the imprisonment occurred is competent evidence for the plaintiff.

7. In an action on the case for false imprisonment, if the defendant has unlawfully sued out process of arrest against the plaintiff, and has caused him to be imprisoned upon it and the process has been afterwards set aside because illegally issued, it constitutes no defence to the party: but the plaintiff is entitled to recover damages for the wrong done him, without regard to the motives of the defendant, or the circumstances attending the doing of the wrongful and unlawful act

8. In such a case, though the act complained of was done without malice, yet, being unlawful and in violation of the plaintiff's right, he is entitled to recover not only for the costs he has incurred, but for the loss of time interruption to his business, and the suffering, bodily and mental, which the act may have occasioned.

9. An irregularity in forming a jury must be objected to before the jury is sworn, unless the party is shown to have been injured by it.

This was an action for trespass on the case in the Circuit court of Randolph county, brought in August, 1856, by William J Harper against Solomon Parsons. The declaration contains eleven counts, the first of which is as follows:

Virginia, Randolph county to wit: William J. Harper complains of Solomon Parsons, who hath been summoned in a plea of trespass on the case.

First count. --For that the said Solomon Parsons, on the 29th day of October, 1855, at the county aforesaid, had pending in the Circuit court of Randolph county, an action of trespass on the case in his favor against the said William J. Harper, for words alleged to have been spoken of and concerning the said Solomon Parsons by the said Wm. J. Harper. That the said Solomon Parsons, on the day and year aforesaid, at the county aforesaid, maliciously, falsely, and without probable cause, made complaint before Wm. C. Chenoweth, a justice of the peace for the county of Randolph aforesaid, under oath, that he, the said Solomon Parsons, believed that the said Wm. J. Harper was about to quit this State unless he, the said Wm. J. Harper, be forthwith apprehended. That the said Solomon Parsons, on the day and year aforesaid, maliciously and without probable cause, procured the said justice to, and the said justice then and there, by reason of the procurement by the said Solomon Parsons aforesaid, did then and there direct that the said Wm. J. Harper should give bail in said action in the sum of two thousand dollars; and that the said Solomon Parsons thereupon, on the day and year aforesaid, maliciously and without probable cause, sued out of the clerk's office of the said court in which the said action was pending, a writ of capias ad respondendum against the said William J. Harper, reciting the orders of the justice aforesaid, directed to the sheriff of said county of Randolph, whereby the said sheriff was commanded to take the said William J. Harper and him safely keep until he gave bond and security in the sum aforesaid, or until he be otherwise discharged by law. That the said Solomon Parsons, on the day and year aforesaid, placed the said capias ad respondendum in the hands of George McLean, sheriff of the said county of Randolph, and procured him by virtue thereof, and he, the said George McLean, sheriff as aforesaid, on the 30th day of October, 1855, by reason of the said procurement by the said Solomon Parsons, and under color of the said capias ad respondendum, did assault and arrest the said William J. Harper, and commit him to the jail of the said county of Randolph, and kept him, the said William J. Harper, in the said jail and close confinement for a long space of time, to wit, two days. That the said capias ad respondendum was, by the said court, on the 28th day of May, 1856, quashed; and the plaintiff, in fact, says, that by means of the premises he is greatly injured and damaged, and has been put to great charges in freeing himself from said imprisonment, and forced to undergo grievous pains of body and mind; and during his imprisonment was hindered from exercising his lawful employment, trade and business, and whereby the plaintiff's reputation was thereby greatly impaired in his business.

The fourth, fifth, and eighth counts were in the form of counts for trespass vi et armis. The others varied from the first, some of them in omitting the charge that the capias was sued out maliciously and without probable cause; others alleged that the bond which the plaintiff was required by law to file in suing out the capias, had not been filed; and others averred special damage.

The defendant appeared and demurred to the whole declaration and each count thereof; and the plaintiff joined in the demurrer. The defendant also filed the general plea of " not guilty; " and also three special pleas, upon which issues were joined. But, as no questions arose on the special pleas, they need not be further noticed. Subsequently the demurrer to the first and ninth counts were withdrawn, that to the third count was sustained, and the demurrers to the whole declaration, and to the other counts were overruled.

The action came on to be tried at the October term of the court for 1858, when the plaintiff, having introduced in evidence to the jury the judgment of the court quashing the capias and bond taken in pursuance thereof, issued in the case of the defendant against the plaintiff, and referred to in the plaintiff's declaration, offered to prove by his counsel in that case, that the plaintiff had paid him at least ten dollars for his services in making the motion to quash said capias. To the introduction of this evidence the defendant, by his counsel, objected; but the court overruled the objection; and the defendant excepted.

In the progress of the trial, the plaintiff introduced a witness named Phillips, who, after stating that in October, 1855, he lived seven miles from the defendant and eight from the plaintiff; and that the plaintiff was making improvements on his farm, and his credit was considered good, said: " That he was at the defendant's about the 1st of October, 1855; said defendant then said that Harper, the plaintiff, penned up some of his, defendant's, cattle in a pen, where they had nothing to eat or drink, and had kept them there for some time. That his, defendant's, religion would not bar him from going to work on said Harper, and that he would make use of it at the next Circuit court. That defendant seemed to be somewhat in a passion." To the introduction of this evidence, except the last sentence, the defendant objected as irrelevant and improper; but the court overruled the objection; and the defendant excepted.

In the further progress of the cause, the plaintiff introduced in evidence the deposition of David Gibson, who, after stating in answer to interrogatories, that he was slightly acquainted with the plaintiff and defendant, living eighty miles from them; that he was president of the Bank of the Valley, at Romney, and had been connected with it as president or director for thirty-five years; that the plaintiff had some years previous, but not for years past, frequently borrowed money at said bank; and that he knew of no communication from the defendant or anybody else, as to the credit of the plaintiff, being received by the bank or any of its officers in the fall of 1855 or 1856, but that he understood from common rumor, about that period, that the plaintiff was in jail in Randolph county, and that it grew out of a suit between the plaintiff and defendant; the plaintiff put to him the following: " State whether or not the rumor of the imprisonment of complainant affected his credit at said office; and if so, to what extent?" To which he answered, that he could not say. He did not remember that he ever asked for a loan that was refused, if the bank was in a condition to make it; or that he had asked for a loan since the rumor had been heard. And then the witness stated: " In the fall of the year 1854 or 1855, I think it was in 1855, I came down Clover run and crossed Cheat river, and as I passed the house of Dr. Parsons, he came out and walked some distance with me, and I was enquiring as to the ownership of property as we passed; and when I enquired as to the ownership of a tract on the opposite side of the river, he said it belonged to the complainant; and I then said that the father of the complainant owned a long string of lands on Clover run. He replied yes, the Harpers hold a good deal of property, but they are very much involved." The witness stated, that when he...