
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    ELI SCOTT v. WILLIAM WILSON.
    Appeal.
    In an action for malicious prosecution, what was sworn to by the prosecutor, on the trial of the indictment, may be given in evidence, without being restricted to such testimony of the prosecutor as was stated by him to be exclusively within his knowledge. [But see 2 Gr. Ev. § 457.]
    On a motion for a new trial, on any ground resting on the information of others, the mover’s own affidavit alone cannot be sufficient; it must be accompanied by the affidavit of the person possessing knowledge, or, at least, the affidavit of some disinterested individual to whom the information was communicated. [Acc. Price v. Jones, 3 Head, 87, citing this case; Cooke, 292; 3 Hay. 159.]
    This was an action on the case for a malicious prosecution brought by the appellant against the appellee in the Williamson Circuit Court.
    On the trial of the cause in the Circuit Court, the defendant, as a part of his evidence to prove probable cause, introduced a witness to prove what he, the appellee, had sworn to on the trial of the indictment against the appellant. This testimony was objected to by the appellant, who also contended that if it was received the witness should not be permitted to detail anything which had been sworn to by Wilson, except as to facts alone confined to his knowledge. But the objections were overruled and the witness permitted to state generally what had been deposed by Wilson; to which opinion the appellant took a bill of exceptions.
    The jury having found a verdict in favor of the appellee, the appellant moved for a new trial upon his own affidavit, stating that after the trial he discovered a material witness, viz. William Carson, by whom he could prove that Wilson had said that the appellant was innocent of the charge upon which he was indicted, but that he would prosecute him and hang him if he could. The affidavit further stated, that after the trial he had been informed and believed that two of the jurors who tried the cause, to wit: Elisha Hardeman and Samuel Shelburn, had said-before the cause came on that if they should be on the jury they would find a verdict in favor of the appellee. The Court overruled the motion, to which opinion the appellant also excepted.
    The cause was then removed into this Court by appeal.
    
      Goolce, for the appellant.
    It is a general rule that whatever would be a good cause of challenge to a juror, if discovered before he is sworn, will be sufficient to set the verdict aside if not discovered until afterwards. Hardin’s Reports, 197. In vain may you talk about tbe excellence of the trial by jury if prejudice and partiality in one of the jurors is not a good cause to set the verdict aside. No man who submits his cause to the decision of any tribunal ought to be bound to submit to whatever determination is made, when it is evident that the triers are prejudiced in favor of his adversary.
    The jury should be above all exception. A declared opinion in favor of either party gives the other by law the right of a peremptory challenge. If, however, when the juror is called to the book to be sworn a knowledge of the objection exists and yet none is made, the party injured cannot be permitted to avail himself of the exception on a motion for a new trial. But it is otherwise where the objection is not known until after the verdict is returned into Court. 5 Bac. Abr. 245; 6 Do. 961; 7 Mod. 54; Salk. 645; 1 Cow. 112.
    It will, perhaps, be urged on the part of the appellant, that to make the partiality of a juror a good reason for granting a new trial, the fact upon which the motion is founded should be made to appear by other evidence than tbe affidavit of the party. To this I would reply, that no rule of practice requires it to be done, and that such a requisition would be manifestly unjust and oppressive. If any law existed to compel the informant to make an affidavit, there would be much reason in saying that the oath of the party would not be sufficient. No such compulsion, however, exists; consequently, from the necessity of the case, the evidence which the appellant offered is all that the law can reasonably require.
    Upon the other point, it seems to me, there can be no sort of difficulty. No case can be produced, where, upon the trial of the action for a malicious prosecution, evidence has been received of what had been sworn to by the prosecutor, except in the single case of the fact proved by the prosecutor, being known to no other person. The leading case upon' this subject goes expressly upon this principle. 6 Mod. 216. If no person is present at the time that the felony is said to have been committed but the defendant, his oath, upon the trial of the indictment, may be given in evidence to prove the felony. As this is certainly against the general principles of the law, we must look to the reason. And what is it P Simply because, from the nature of the transaction, better proof is not supposed to exist; and therefore, from necessity, the evidence is received. But the case is widely different where the evidence of the prosecutor is offered and received without any restriction. Bul. N. P. 14; 2 Esp. N. P. 282; 2 Peak’s Ev. 289 ; 2 Hay. Rep. 29.
    
      Haywood, Whiteside, Dickinson, and Hayes, for' the appellee.
    The action of malicious prosecution is not favored, and therefore, unless the Circuit Court have flagrantly erred, the judgment ought not to be reversed. It is true, that if the fact set forth in the affidavit of the appellant had been made to appear by indifferent testimonjq the Court perhaps ought to have granted a new trial. But there are several objections to the affidavit, as well as to the mode of proof. Suppose all the facts which the appellant has sworn to are false, could he be prosecuted for perjury ? The answer which must be given to this question is fully calculated to test the positions assumed by the counsel for the appellant. The affidavit does not state who gave the information. The whole subject, therefore, which it embraces is equivocal and uncertain. However false, it is impossible to convict the appellant of perjury; because, he cautiously brings forward the matter in such a way as to exclude the possibility of proof. As a good general rule, no affidavit ought to have any weight, in a judicial controversy, if, in the event that it is untrue, the person swearing to it cannot be found guilty of perjury.
    But, independent of this, the mode of proof is not sufficient. The verdict of a jury should not be set aside unless upon indifferent testimony, particularly where the motion is founded upon the partiality of a juror. It at least ought to appear that no better evidence could be procured, and that some good reason existed why the affidavit of other persons had not been produced.
    Upon the other point, we believe that the Circuit Court acted correctly. Whatever the rule once may have been, it is not now as is argued by the counsel for the appellant. Indeed it seems to us that there is much greater danger of injustice to the appellant, to admit the witnesses to detail what was proven by Wilson as to facts known to no other person, than to permit a detail generally of all he deposed to. . In the latter case, the danger of being injured by the perjury of the prosecutor is wholly avoided. The true rule at present is, that upon the trial of the action for a malicious prosecution, all that was sworn to upon the trial of the indictment may be given in evidence. Bul. N. P. 14.
    In this case, however, the evidence objected to does not appear in the record, and, for anything that appears, it was not material. The Court ought to presume that it was wholly immaterial, and did not affect the appellant; if so, although the admission of it was wrong, yet it can be no cause for reversing the judgment. To reverse the judgment, it is necessary for this court to be satisfied not only that the inferior court erred, but also, that by the occasion of that error the appellant was injured.
   Overton, J.

delivered the following opinion of the Court: —

This was an action for a malicious prosecution, commenced in the Williamson Circuit, by the appellant against the appellee.

Several exceptions were taken on the trial, some of which have been abandoned by the counsel for the appellant. The points presented to the Court in the course of argument, arising out of the exceptions taken in the cause, are: First, Whether it be proper to permit testimony to be given of what the appellee, who was the prosecutor, swore on the trial of the indictment, without restricting that testimony to such things as were exclusively within the knowledge of the prosecutor. Secondly, Whether it would have been correct for the Circuit Court to have granted a new trial on the affidavit of the plaintiff in the action, against whom the verdict had been found, stating therein only information, without producing the affidavit of any person to whose information he alluded.

The Court has bestowed an attentive consideration on the authorities introduced by the counsel for the appellant on the first point, except the case in 6 Mod. 216, which they have not been able to procure. In examining these authorities, it seems to the Court that the cases put of felony and robbery, where there might be no other witness but the prosecutor, are instances by way of illustration in the course of reasoning, and not that it was laid down by way of limiting the rule itself. No possible reason can be seen by the Court for such a limitation. If others knew facts sworn by the prosecutor, there would be less inconvenience and danger in admitting the testimony of what he swore, than if it rested only in his own knowledge, because there would exist in the knowledge of others a check to the false swearing of the prosecutor. Besides, a rule of law thus limited would be lost in its application.

When a prosecution is set on foot, no person can tell that a suit for a malicious prosecution will be brought; it would rarely happen that the prosecutor would call on any bystander to take notes of such parts of his testimony as related .to facts within his own knowledge; nor is it presumable that any person present would take such particular notice as to be able, perhaps years afterwards, to distinguish such facts as were stated to be in the knowledge of the prosecutor, supposing this distinction to have been taken at the time of giving the testimony; but this would but seldom happen. It is not probable that the prosecutor would think of stating whether other persons knew the facts or not; and the person accused, not being present, nor counsel for him, it cannot be presumed in most cases that he would be examined with a view to this distinction. On this, ground, the opinion entertained by the circuit judge is correct.

It may not be amiss to consider the second proposition in two points of view, as it relates to the situation of the jurors, and information respecting witnesses discovered since the trial. On a motion for a new trial, on any ground, resting on the information of others, the mover’s own affidavit alone cannot be sufficient. The affidavit of the person possessing knowledge, or at least the affidavit of some disinterested individual to whom the information was communicated, should be produced. It is not to be presumed that the jurors who were exceptionable would disclose those exceptions, but in some way by which the information might be derived from another person ; and it was necessary to have the affidavit of that person thus receiving the information, and not the mover alone. This reasoning applies with greater force to the information respecting the discovery of testimony since the trial.

Let the judgment be affirmed.  