Malicious Prosecution — Exceptions — Evidence — Malice. If no exception is taken to the admission of testimony, the question whether it was admissible or not is not open.
In an action for a malicious prosecution of a former suit brought by the defendant against the plaintiff, it is competent to prove what was said by the defendant in the original action and by his wife to the officer who made the attachment, as to the wife's ownership of the property attached, this being communicated to the plaintiff. It was notice to the plaintiff in that action that the property belonged to the wife, and his answer that "they would not stay without their furniture; they would come around and settle," was admissible to show malice on his part.
If, in an action for a malicious prosecution of a former suit brought by the defendant against the plaintiff, the answer to a question put to a witness, as to what he heard and saw after he arrived at the place where the officer had just attached the alleged property of the defendant in the original action, disclosed anything immaterial or incompetent, the defendant in this action should have asked to have it stricken out; and this not having been done, and no exception having been taken to the answer, he has no ground of complaint.
LATHROP, J.
1. No exception was taken to the admission of the testimony of Bullard, and the question whether it was admissible or not is not open to the defendant. The same is true of the testimony of the warehouseman.
2. It was competent to prove what was said by the defendant in the original action, and by his wife to the officer who made the attachment, this being communicated to the plaintiff. It was the same as if the parties had spoken face to face. This was notice to the plaintiff that the property belonged to the wife, and the answer of the plaintiff in that action, that "they would not stay without their furniture; they would come around and settle," was admissible to show malice on his part.
3. As to the question put to the witness Sutherland, as to what he heard and saw after he arrived, we see no ground of objection. If his answer disclosed anything immaterial or incompetent, the defendant should have asked to have it stricken out. This was not done, and no exception was taken to the answer.
Exceptions overruled.