
    Joseph C. Tilton et al. v. Burnham Morgaridge.
    1. In an action for malicious prosecution, an averment that the defendants had, without cause, falsely and maliciously made written complaint before a justice of the peace, charging the plaintiff with having embezzled and destroyed letters-in the United States’ mail, entrusted to him as mail-carrier, and procured a warrant to be issued by said justice for his arrest, returnable before a United States’ commissioner, and caused him to be prosecuted on such charge; and that the commissioner, on hearing, found that there was no cause of complaint; and that he was discharged by said commissioner ; by which he had been greatly injured in his reputation, etc., constitutes a cause of action.
    
      9. The refusal of the court to permit one of several defendants in the action to set up by answer, as a defense, that since the commencement of the suit, and prior to the last two continuances, one of his co-defendants had, for himself, made an accord and satisfaction with the plaintiff, is not error.
    3, Although such facts constitute a good defense, and one which each of the defendants had the right to avail himself of, the same being a strictly legal defense, the court might properly require such defense to be made within the time limited by law, to-wit: before the next term and continuance after the occurrence and knowledge of such facts constituting such defense.
    Error, to the district court of Noble county.
    On the 27th of June, 1855, Burnham Morgaridge filed his petition in the court of common pleas of Noble county, in an action against Joseph C. Tilton, Josiah B. Parry, Dennis S. Gibbs and Alfred B. Clark, charging that they, intending to injure him, the plaintiff, on the 21st of April, 1855, had, maliciously and without reasonable cause, filed their written complaint, under the oath of said Parry, before Joseph L. Clark, a justice of the peace in and for said county, charging him, the plaintiff, and Frederick and Purley Morgaridge, with having on the 12th of April, 1855, at said county, and within the southern district of Ohio, while acting as carriers of the mail, etc., unlawfully secreted, embezzled and destroyed certain letters with which they were then and there entrusted in said mail, etc., and, by reason of said complaint so falsely, causelessly and maliciously made, having procured the said Joseph L. Clark, justice as aforesaid, to make and grant his certain warrant, under his hand and seal, for taking said plaintiff, and Frederick and Purley forthwith before John Doe or any commissioner at the city of Cincinnati, in said state, to answer said complaint, and to be further dealt with according to law; and that without any reasonable cause, etc., they caused the plaintiff to be arrested and taken by the marshal, etc., to and before John L. Pendery, a United States’ commissioner, etc., at Cincinnati; and before and by whom the plaintiff was. on the 25th April, 1855, adjudged not guilty of the supposed offense so charged in said complaint, and was then and there fully acquitted and discharged. By means whereof the plaintiff says he is greatly injured in credit, reputation, etc., and asks for damages.
    A summons was issued and served; and the defendants Parry, Gibbs, Clark and Tilton made answer to the petition, that each and every allegation mentioned (therein) is untrue.
    The cause was continued from term to term at the instance of the plaintiff, until the June term, 1858, when the journal shows that “the same parties, by their attorneys, and all of said parties in open court waived a trial by jury, and submitted the cause to the court; and thereupon this cause came on to be heard upon the petition of said plaintiff and the answer of Dennis S. Gibbs, one of the defendants in this case, setting up, as a ground of defense, a release to him, executed by Burnham Morgaridge of all actions or causes of action in regard to the subject matter of this suit, and the replication of the said plaintiff thereto ; and after hearing the evidence and arguments of counsel, the court being fully advised in the premises, does find that all the material allegations set forth in the answer of said Dennis S. Gibbs, so far as inconsistent with the facts set forth in the replication of said plaintiff, are untrue; whereupon said plaintiff by his said attorneys in open court dismissed this action as to defendant D. S. Gibbs; and on motion to the court defendants have leave to answer herein, instanter, which is accordingly done. And thereupon this cause came on further to be heard, and a jury came, to-wit,” etc., and rendered a verdict for the plaintiff for eleven hundred dollars, upon-which judgment was entered.
    The defendants took a second trial under the statute, and the cause was continued from the June to the October term, 1858, and then again to the March term, 1859, when it again came on for trial.
    Before the jury were impanneled and sworn, the defendant, A. B. Clark, “ asked leave to answer, setting forth the fact that since the commencement of the above cause, D. S. Gibbs, one of the original defendants,. had entered into a contract with said Burnham Morgaridge, whereby the said Gibbs agreed to pay to said Morgaridge the sum of ten dollars, and that in consideration of said sum of ten dollars the said Burnham Morgaridge was to release and dismiss the above cause as to him the said Gibbs; and that in pursuance of said contract said Gibbs paid to said Morgaridge said sum of ten dollars, and that he, the said Morgaridge, accepted the same, and in consideration, agreed to release said Gibbs from said action.” But the court overruled the motion of Clark, and refused to allow him to file such answer, and he excepted.
    The plaintiff then introduced a witness to prove a separate and distinct arrest of the plaintiff for the same offense, prior to the arrest complained of; to which proof the defendants objected, but the objection was overruled and the proof admitted ; and the defendants excepted.
    The plaintiff also offered in evidence the affidavit of the defendant Parry to procure the arrest, and the warrant issued thereon by justice Clark. The defendants objected to the introduction of this proof, but the objection was overruled and the defendants excepted.
    The jury returned a verdict in favor of the plaintiff for sixteen hundred dollars.
    The defendants thereupon filed their motion for a new trial, assigning for cause that the verdict was against the law and evidence.
    This motion was overruled and judgment rendered upon the verdict; to which the defendants excepted.
    The bill of exceptions sets forth evidence offered upon the trial by the plaintiff, and also evidence offered by the defendants, which is by the court certified to be “ all the evidence introduced by plaintiff for the purpose of proving, or tending to prove, the arrest of plaintiff upon said warrant, issued by said Joseph Clark, justice, and all the proof of defendant tending to disprove the matters charged.” But it is not stated, in the bill of exceptions, that the evidence set forth therein, is all the evidence given on the trial.
    The case was taken to the district court on error, by the defendants below, to reverse the judgment of the common pleas.
    The errors assigned were :
    1. That the facts set forth in the petition are not sufficient in law to maintain the action.
    2. That the court erred in overruling the motion of Clark for leave to file his answer setting up accord and satisfaction by Gibbs.
    3. That the court erred in admitting the evidence of the plaintiff to which the defendants objected.
    4. In overruling the motion for a new trial.
    The district court affirmed the judgment of the common pleas, and to reverse this judgment of affirmance the present petition in error was filed.
    
      Hanna, Dudley, Ferguson, Priestly and Belford, for plaintiffs in error.
    
      T. W. Fwart, for defendant in error.
   :Sutlxff, J.

The bill of exceptions sets forth evidence given on the trial both on the part of the plaintiff and defendants, and the judge therein certifies it to contain “ all the •evidence introduced by plaintiff for the purpose of proving -or tending to prove the arrest of the plaintiff upon said warrant, issued by Joseph Clark, justice, and all the proof of defendant tending to disprove the matters charged.” Rut it is ■not certified, nor does it appear by necessary implication, that the bill of exceptions contains all the evidence given upon ■the trial, which is indispensably necessary to enable this court to determine whether the court below did or did not err in •overruling the motion for a new trial for the alleged cause that the verdict is against the evidence. We can not, therefore, in this case look to the evidence set out by the bill of exceptions.

It remains, therefore, only to consider the questions of ¡law, presented to .the .consideration of the district court, and concerning which, objection is now made to the holding of that court.

In the first place, it is said that the district court erred in holding that the facts set forth in the original petition are not sufficient in law to maintain the action. We understand the objection to the petition, intended to be expressed in this exception, to be, that the prosecution whs commenced before a justice of the peace by the affidavit and complaint having been ma¡de before the justice; and it is denied that the justice of the peace had any jurisdiction in the case. But while the petition, it is true, represents the-complaint to have been made, by the defendants below, before the justice of the peace, it is also charged that their object was to procure the plaintiff to be arrested and taken before some United States commissioner, and that they did thereby procure a warrant to issue from said justice, and caused the plaintiff to be arrested and taken before a commissioner at the city of Cincinnati, etc.

The petition states that the defendants willfully, maliciously and without cause, instituted said proceedings, and caused the plaintiff to be arrested and prosecuted before said United States commissioner, and that he, the plaintiff, was finally discharged for want of any cause to sustain said prosecution.

The facts stated in the petition, therefore, are consistent with the understanding that the intention of the pleader was to charge the defendants with-having instituted and carried on the malicious prosecution before the United States commissioner ; and every reasonable presumption being in favor of the' judgment, it may well be intended that such is the offense charged by the plaintiff in his petition, and not merely instituting the proceedings before the justice of the peace for which the plaintiff seeks to hold the defendants chargeable. And although the proof, set forth in the record, is to the effect that the prosecution before the United States commissioner was instituted by a complaint made by Burnett, a U. S. marshal, and not by the defendants, inasmuch as all the proof on this subject may not be set forth, it may be possible that contrary evidence was offered to the jury; at all events, inasmuch as all the evidence is not before us, we can not say that the jury found contrary to the evidence upon this point; or might not, consistently with the evidence, have found the malicious prosecution charged, to have been commenced before the commissioner, and not the justice of the peace.

Nor can we affirm from the record that the court erred in refusing to allow Clark to file his answer setting up the accord and satisfaction by Gibbs. Eor, although the record shows that the matters proposed to be so set forth in the answer would have constituted, as to all the defendants, a good bar, and that all the defendants had the right to have availed themselves of the matters as a defense, yet the record shows that at the June term 1858, and after Gibbs had by his answer, as expressed in the journal entry of that term, disclosed those facts to the other defendants, the court gave all the defendants leave to answer instanter, and thereby set the same up in their answers; and it is a rule that pleas puis darien continuance, must be pleaded before the next continuance after the facts or events have occurred and become known to the party.

It was, therefore, within the discretion of the court to allow or refuse such answer at the late period of time when leave was so asked and refused. And there is nothing in the record to show us that the court did not place its refusal upon this ground, instead of the assumed ground, that there had been a finding against the averment of the same facts in the answer of Gibbs — an objection which is hardly sustained by the record. Eor it does not appear from the record that the same facts had been set up as a defense in the answer of Gibbs; nor is there any showing that the court had found the facts untrue; but only that the same were untrue wherein contrary to or inconsistent with the facts set forth in the replication thereto; an.d the record does not show that the same were in any respect inconsistent with the replication. We must, therefore, presume that the court refused Clark leave to set up those facts as a defense, for the reason that he had neglected to avail himself of the defense within the rule by which he was entitled to the benefit of the defense.

Inasmuch, therefore, as the facts so sought to be pleaded, or set up in the answer as a bar, constituted a strictly legal, if noli; a mere technical defense, it was quite proper for the court to hold the party to the strict legal rule in availing himself of such defense.

We can not, therefore, say that the court of common pleas erred in thus overruling the motion of the defendants to file such amended answer in the case. Nor can we perceive that the court of common pleas erred in admitting the evidence of the plaintiff, objected to by the defendants; or in overruling the motion for a new trial.

The judgment of the district court affirming that of the common pleas, must therefore be affirmed.

Scott, C. J., and Peck, Gholson and Brinkerhoee, J J., concurred.  