by its decree approved and confirmed the same, we see no reason for disturbing it. The judgment is accordingly affirmed. (5 N. M. 356) LEYSER v. FIELD. (Supreme Court of New Mexico. Jan. 18, 1890.) MALICIOUS ATTACHMENT-LIABILITY OF ATTORNEY. 1. In an action against an attorney for maliciously issuing an attachment, it is error to refuse to instruct the jury that defendant "had a right to act on facts and circumstances brought to his knowledge through the usual and ordinary business channels, if he believed them to be true, and if such facts and circumstances were of such character, and came from such sources, that lawyers generally, of ordinary care, prudence, and discretion, would act on them, under similar circumstances, believing them to be true, then such facts and circumstances, if believed by said defendant to be true, will constitute probable cause. 2. In such a case, it is error to refuse the instruction that "the mere termination of the attachment suit in favor of plaintiff does not raise the presumption of want of probable cause for suing out the writ, nor can the jury presume that defendant acted maliciously from this fact alone." Appeal from district court, Socorro county; BRINKER, Judge. John H. Knaebel, for appellant. & Fergusson, for appellee. Warren LEE, J. This is an action of trespass on the case, brought by Simon Leyser against Louis Lieberman, Joseph C. Mannheimer, Neill B. Field, Henry C. Lewis, and S. E. Ulman, in which the plaintiff charges in his declaration that the said defendants, on the 1st day of May, 1883, at the county of Socorro, and territory of New Mexico, not having good and reasonable or probable cause to believe that the said plaintiff had fraudulently disposed of his property so as to defraud and hinder his creditors, or was about to dispose of his property with such intent, but wrongfully, maliciously, and unlawfully contriv. ing and intending to injure, harass, and oppress, did wrongfully, falsely, and maliciously procure or caused to be issued out of the district court of the second judicial district in and for the county of Socorro a certain writ of attachment, at the suit of Lieberman & Mannheimer, whereby the sheriff was commanded to attach the goods, lands, and tenements of the plaintiff in a suit in said district court by the said Lieberman & Mannheimer for the recovery of a demand against the said Simon Leyser for the sum of $728; that said defendant Field caused said sheriff to levy said attachment upon a stock of goods and merchandise of the said plaintiff; that the plaintiff, in order to procure a release of said goods, was obliged to and did pay off said demand, though said debt was not yet due; that he was injured in his business; and that he had to pay out the sum of $1,000 in and about the premises for getting his property released; wherefore he demanded judgment against the defendants for $5,000. The defendants Lieberman & Mannheimer were not served with process, and did not appear. The other defendants pleaded not guilty to said declaration. A jury trial was had upon the issue thus formed, with the result of a verdict of not guilty as to all of said defendants who appeared except Neill B. Field, against whom a verdict was returned for the sum of $400. After a motion for a new trial had been overruled by the court below, judgment was entered upon said verdict against defendant Field, from which he appealed to this court. The evidence is set out in the bill of exceptions. The following is a brief statement of the evidence of Leyser and Field: Leyser testified that he was engaged in the mercantile business; that he was responsible; he denies that he was about to dispose of his property with intent to hinder, delay, or defraud his creditors; that a day or two before the bringing of the attachment proceedings the defendant Field, as one of the attorneys of Lieberman & Mannheimer, came to him, and presented a bill for payment, in favor of said. firm, for the sum of $728; that the claim was on an open account; that he refused to pay it for the reason that it was not due; that a day or two afterwards suit was commenced by attachment; that the sheriff came with a writ, and levied upon his goods; that he paid off said claim in order to have his property released. The defendant Field testified that he was an attorney at law; that he received the claim for collection from Lieberman & Mannheimer; that he presented the same to the said Leyser, and demanded payment; that said Leyser refused, claiming that the account was not due; that he was informed that Leyser had been reported by the commercial agency as about to make a fraudulent assignment; that an attachment had already been commenced by one Staab, and that other claims were in the hands of other attorneys for collection; that he commenced attachment proceedings by direction of his clients; that he acted in good faith in the premises; that he had no ill will against said Leyser, and did not desire to harass or oppress him. The appellant assigns some 24 grounds of error, but we do not deem it necessary to decide other than such points as we think decisive of the case. The errors to which we will direct our attention arise in the charge given by the court to the jury, and in certain instructions asked by the defendant and refused. The court below, in its charge to the jury, submitted to them alike the questions of malice and probable cause as matters of fact to be determined by them, and did not instruct them as to what facts or circumstances would or would not constitute probable cause, though the defendant asked instructions to that effect, two of which are as follows: "(2) The court instructs the jury that the mere termination of the attachment suit in favor of plaintiff does not raise the presumption of want of probable cause for suing out the writ, nor can the jury presume that the defendant Field acted maliciously from this fact alone." "(10) The court instructs the jury that the defend view of what appeared to him when he filed the proceedings in attachment; not what the facts proved to be afterwards, but had he reasonable cause for his action when he took it? Not what the actual fact was, but what he had reason to believe it was. Faris v. Starke, 3 B. Mon. 4; Raulston v. Jackson, 1 Sneed, 128. If the defendant acted in good faith, with an honest purpose to collect a just claim for his clients, the mere wrongful resort to legal process affords no ground of action. It is dumnum absque injuria. And further than the cost, which is the legal pen could be no other damages. McKellar v. Couch, 34 Ala. 336. The misuse of legal process in a civil proceeding must have been wrongful, corrupt, and malicious; for if the defendant had an honest and reasonable conviction that Leyser was justly indebted to his clients for the claim he held for collection against him, and it was reported, and he believed the report to be true, that plaintiff was about to make a fraudulent assignment of his property, he had a right to act upon facts and circumstances brought to his knowledge through the usual and ordinary business channels, if he believed them to be true; and if such facts and circumstances were of such character, and came from such sources, that lawyers generally, of ordinary care, prudence, and discretion, would act upon them, under similar circumstances, if they believed them to be true, then such facts and circumstances, if believed by Field to be true, would be probable cause for instituting the attachment proceedings, and if such facts were found by the jury to be true his defense would have been complete. And we think the court erred in not giving instruction No. 10 asked for by defendant, which is hereinbefore set forth. ant Field had a right to act upon facts and circumstances brought to his knowledge | through the usual and ordinary business channels, if he believed them to be true; and if such facts and circumstances were of such character, and came from such sources, that lawyers generally, of ordinary care, prudence, and discretion, would act upon them, under similar circumstances, believing them to be true, then such facts and circumstances, if believed by said Field to be true, will constitute probable cause." The court refused to give these instructions, to which the defendant excepted, and thus raises the ques-alty for bringing a groundless suit, there tion upon which we think the case must be decided. The supreme court of the United States, in the case of Stewart v. Sonneborn, 98 U. S. 187, quite clearly sets forth the law in a case very similar to the one under consideration. In that case they refer to the ancient case of Farmer v. Darling, 4 Burrows,(1971,) where Lord MANSFIELD instructed the jury that “the foundation of the action was malice, and malice, either expressed or implied, and the want of probable cause, must both concur." And, says the supreme court. "from 1766 to the present day, such has been constantly held to be the law both of England and this country, ** * * and the existence of malice is always a question exclusively for the jury.” Malice, it is admitted, may be inferred by the jury from the want of probable cause. But the want of probable cause cannot be inferred from any degree of even expressed malice, but what amounts to probable cause is a question of law, in a very important sense. In the celebrated case of Sutton v. Johnstone, 1 Term R. 493, the rule was thus laid down: "The question of probable cause is a mixed question of law and of fact. Whether the circumstances alleged to show it probable are true, and existed, is a matter of fact; but whether, supposing them to be true, they amount to a probable cause, is a question of law." This doctrine is generally adopted. McCormick v. Sisson, 7 Cow. 715; Besson v. Southard, 10 N. Y. 236; Barron v. Mason, 31 Vt. 189; Driggs v. Burton, 44 Vt. 124; Stewart v. Sonneborn, 98 U. S. 194. "It is,' says the supreme court in the last case cited, "the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to probable cause, or that they do not." What facts or circumstances will, when proven, authorize the court to instruct the jury, if they find such facts and circumstances to be true, what will constitute probable cause, must, in the nature of things, vary with every different case; but there are some general principles that underlie all cases, and frequently, when applied, will settle the case in question. For instance, in this case the conduct of the defendant is to be weighed in The defendant also asked the court to instruct the jury that the mere termination of the attachment proceedings in favor of the plaintiff does not raise the presumption of want of probable cause. The supreme court, in the case before referred to, holds, in every case of an action for malicious prosecution or suit, it must be averred and proved that the proceeding instituted against the plaintiff has failed; but its failure has never been held to be evidence of either malice or probable cause. The same is held in Cloon v. Gerry, 13 Gray, 201; Adams v. Lisher, 3 Blackf. 445. The instruction was a fair and clear expression of the law material to the defendant, and it should have been given; and it was error to refuse it. Having come to the conclusion that this case must be reversed, we do not give any opinion upon the other points raised. The judgment will be reversed, and the cause remanded for a new trial. LONG, C. J., and McFIE and WHITEMAN, JJ., concur. (5 N. M. 365) KIRCHNER v. LAUGHLIN. (Supreme Court of New Mexico. Jan. 19, 1890.) EVIDENCE-TESTIMONY OF WITNESS ON FORMER TRIAL STENOGRAPHER-DECLARATIONS. 1. The testimony of a witness on a former trial cannot be proved by another, except in case of the death or insanity of the witness, or where it appears at the time of the trial that by reason of physical disability of a permanent character he is unable to be examined, and that by the exercise of due diligence his deposition could not have been taken, or where the witness is beyond the seas or absent from the territory, and his whereabouts cannot by due diligence be ascertained, or where, by the procurement of the opposite party, the witness absents himself from the jurisdiction of the court after having been duly summoned. 2. Under Comp. Laws N. M. 1884, § 548, which provides that the stenographer of the court shall take an oath faithfully to discharge his duty, and that the short-hand notes taken by him shall be deposited in the office of the clerk of the court, but which does not declare the legal value of the notes as evidence, the testimony of the stenographer, after refreshing his memory by referring to his notes, as to the testimony of a witness on a former trial, is hearsay. 3. In an action on a contract, declarations of persons as to defendant's admissions of the contract cannot be received in evidence until the agency of those persons for defendant has been proved independently of the declarations. Appeal from the district court, Santa Fe county; REEVES, Judge. Gildersleeve & Preston, for appellant. Catron. Knuebel & Clancy and Thos. Smith, for appellee. WHITEMAN, J. This is an action in assumpsit brought by August Kirchner, appellee, to recover damages for the breach of a contract alleged to have been made by the plaintiff with the appellant, Saron N. Laughlin, and Joseph H. Wiley, on the 9th day of August, A. D. 1879, the contract having been signed and sealed by Wiley for himself and as the agent of Laughlin. Under this contract, Kirchner delivered to Wiley 2,000 ewes, which Laughlin and Wiley were to care for for the period of 5 years, and to pay and deliver to Kirchner annually, for the use of the same, 500 wethers and 500 fleeces of wool, and at the end of 5 years Laughlin and Wiley were to deliver to Kirchner 200 ewes of like age, quality, and condition as those which should be delivered to them. Some time later, 500 additional ewes and 23 rams were delivered by Kirchner upon an unsealed written agreement, dated September 14, A. D. 1881, which was signed in the name of Laughlin by Wiley as agent, and also for himself. This agreement provides, in effect, that the original contract should be enlarged so as to include the additional ewes and rams, under the same terms and conditions as were specified in the original contract. The plaintiff prayed damages for the sum of $3,500, with interest and cost of suit. The defendant, Laughlin, interposed the pleas of non assumpsit and non est factum to the declaration, denying his signature to the instrument in writing sued on, and the authority of any one to execute it for him. The case was tried at the July term, A. D. 1885, of the district court of Santa Fe county, at which trial the court instructed the jury to return a verdict for the defendant, Laughlin. The plaintiff then carried the case by writ of error to the supreme court, which court, at the January term, 1888, reversed the judgment of the district court, and directed a new trial, (17 Pac. Rep. 132,) which was had at the August term, A. D. 1888, and the plaintiff recovered a judgment in the sum of $3,200, and the defendant brings the case upon appeal to this court. The appellant insists that the district court erred in permitting Harry S. Clancy, a witness in behalf of the appellee, to testify as to what William Breeden had testified to upon the former trial of the cause. The witness Clancy was the official stenographer of the court, and, upon being sworn as a witness, testified that he acted as stenographer upon the former trial; that upon that trial William Breeden was sworn and examined as a witness in behalf of plaintiff; and, upon being further interrogated, the witness Clancy testified as follows: "Question. Where is William Breeden? Answer. I am informed I have seen a letter written by Mr. Breeden within the last two weeks from the state of Ohio. Q. State whether or not, on the former trial of this case, the paper I now hold in my hand was identified by Col. Breeden under oath. 4. From my nemorandum made on that paper it appears that it was introduced in evidence upon the former trial of this cause as an exhibit. Q. State whether or not the memorandum in pencil, A. H. S. C.,' is an original note made by you as stenographer on this exhibit, when introduced in evidence. A. It is. Q. Are you acquainted with the handwriting of William Breeden? A. I am. Q. State, if you know, in whose handwriting the body of this instrument is written. A. It is in the handwriting of Col. William Breeden. Q. Do you recollect, in substance, what Col. Breeden testified to as to the signatures to this paper? A. I am able to testify on that point, after refreshing my memory by referring to the original short-hand notes. Q. Have you looked at these notes? A. Yes, sir. Q. State, in substance, what Col. Breeden testified then on that subject. A. Col. Breeden testified that this paper was in his handwriting, and that it was executed by Joseph Wiley, for himself and for Saron N. Laughlin, and also that the additional agree ment on the last page was signed by Mr. Wiley for himself and for Mr. Laughlin. The testimony of the witness Clancy was permitted to go to the jury, notwithstanding the objection of the defendant Laughlin. It was shown upon the trial by the testimony of M. A. Breeden, who is the brother of the absent witness, William Breeden, that he, William Breeden, his wife and family, resided in the town of Santa Fe, N. M.; that he left the territory of New Mexico in July, and that the witness believed him to be in the state of Ohio at that time; that he had re ceived a letter from him within a week or 10 days previous to that time; that he could not state positively whether his brother was on the road or in the territory, but that his understanding was that he was in the state of Ohio, and he did not know when he was expected to return. In the decisions of the courts of the several states that have passed upon the question of the admissibility of the evidence of a witness given upon a former trial of a case, there is great lack of uniformity, and the law is far from being settled. Several courts have held that, where a witness is beyond the jurisdiction of the court, evidence is admissible of his testimony given at a former trial between the same parties, with reference to the same subject-matter. Magill v. Kauffman, 4 Serg. & R. 317; Clinton v. Estes, 20 Ark. 255; Schearer v. Harber, 36 Ind. 536; Long v. Davis, 18 Ala. 801; Wilder v. St. Paul, 12 Minn. 192, (Gil. 116;) People v. Devine, 46 Cal. 45; 1 Greenl. Ev. § 163. It is held, on the contrary, that where the residence of the witness is known, his deposition should be taken, unless it be shown that the circumstances of the case are such as to prevent the taking of his deposition. Wilbur v. Selden, 6 Cow. 164; Gerhauser v. Insurance Co.. 7 Nev. 174; Berney v. Mitchell, 34 N. J. Law, 341; Le Baron v. Crombie, 14 Mass. 234; Bergen v. People, 17 Ill. 427. There would seem to be less force in the position maintained in the cases first cited, at the present time, than there may have been a quarter of a century ago. The imperfect mail facilities and slow methods of travel which existed then made the taking of a deposition of a witness residing or being in another state difficult and uncertain of accomplishment, and consumed a great deal of time; whereas, under the fast mail system and rapid railroad communication with all parts of the country maintained at the present day, the taking of a deposition of a witness in another jurisdiction is accomplished with comparatively little expenditure of time, trouble, or money. In Burton v. Driggs, 20 Wall. 133, cited by the appellee, the court held that, a deposition taken in the case having been lost, a copy of the deposition taken under the direction of the clerk, and by him compared and certified to be a true copy, might be read in evidence in place of the original, (the witness being out of the jurisdiction of the court.) The objection was made that "the copy was not the original." "This, as a fact," the court say, "was selfevident, but, as a ground of objection, it was wholly indefinite." There was no suggestion made "that the place of the lost deposition could only be supplied by another one of the same witness, retaken, and that secondary evidence was inadmissible to prove the contents of the former;" and the case, for that reason, was decided upon the ground that the contents of any written instrument, judicial records, and all other documents of a kindred character, lost or destroyed, may be proved by competent evidence; that there was nothing in the objection made to the introduction of the copy to take the case out of the general rule; and the decision seems to intimate that, if a proper objection had been made, the case would have been decided differently. The requirements of the statute of New Mexico (Comp. Laws 1884, § 548) are that the stenographer of the court shall take an oath faithfully to discharge his duty as such, and that the short-hand notes taken by him shall, at the end of each term of court, be deposited in the office of the clerk of the court, but the statute does not declare the legal value of such notes as evidence. The testimony of the witness Clancy, as to what the witness William Breeden had testified to upon the former trial, therefore, was but hearsay evidence, his memory being refreshed by a reference to his short-hand notes of the former trial; which notes may have possessed a measure of value, as evidence somewhat higher than hearsay evidence, by reason of their having been taken by a sworn officer of the court, and the notes having been in the custody of the clerk of the court during the interval between the first and second trial, but were lacking in value as evidence of a high degree, because of the failure of the statute to declare their legal value. The record of this case does not suggest any reason why the deposition of the witness William Breeden could not have been taken. We are of the opinion that neither legal principle nor sound policy will justify the admission of the evidence given on a former trial, between the same parties and about the same subjectmatter, except in case of the death or insanity of the witness, or where it appears at the time of the trial that, by reason of physical disability of a permanent character, he is unable to be examined, and that, by the exercise of due diligence, his deposition could not have been taken, or where the witness is beyond the seas, or where the witness is absent from the territory, and his whereabouts cannot, by due diligence, be ascertained, or where, by the procurement of the opposite party, the witness absents himself from the jurisdiction of the court, after having been duly summoned to the trial. Upon the trial of the case, the appellee, August Kirchner, was permitted to testify in his own behalf, as to what Col. Breeden stated to the appellee and Joseph H. Wiley, in the absence of appellant, viz., that a certain letter, which was the subject of a conversation between the persons named, was in the handwriting of appellant, and also as to the contents of the letter, and the admission of this testimony is assigned by the appellant as error. The testimony of the appellee upon this point was as follows: "The first year I received my partido' complete. The second year comes Mr. Wiley, and says: 'Chiquito, I received a letter from Mr. Laughlin. We are having a bad year this year, and now I want you to do something for me.' I said: All right; you come to Col. Breeden's office.' We went there, and he took out his letter from Mr. Laughlin. Col. Breeden read it, and said: Chiquito, that is Mr. Laughlin's handwriting. He says he want you to release him from the partido for this year.' I said: I will do so. I told Mr. Breeden, I will do so, because it is a bad year.'" The appellant objected to the testimony. The objection was overruled. The court, in passing upon the objection, stated that anything that was said between Kirchner, Col. Breeden, and Wiley was competent. The evidence would be competent only in the view that Breeden and Wiley were the agents of Laughlin, and were at that time acting within the scope of their authority. If they were not his agents, then any statement they may have made concerning the letter would not be competent. The case was prosecuted upon the theory that Wiley was the agent of Laughlin, and the purpose of this evidence was to show that Laughlin, by asking to be released from paying the partido for that year, admitted his liability under the contract made by Wiley in his name. Laughlin testified that Wiley was not his agent; that he never authorized him to make such a contract, or to sign his name; and that he did not know until the year 1883 that such a contract had been made in his name, and that, when informed of it, he immediately repudiated the contract, and went to Kirchner and demanded that his name be taken off. Wiley testified that "Laughlin was never in any way interested in the contract, and never gave me at any time permission or authority to sign his name to the Kirchner sheep contract, or to enter into any contract for him with Mr. Kirchner in regard to sheep, and Mr. Laughlin never at any time or place ratified the contract with Kirchner sued on in this cause." His testimony is entirely silent upon the point as to whether he did or did not sign Laughlin's name to the contract, and in this connection the testimony of the witness M. A. Breeden may have some significance. This witness testified that the name of Saron | 54 Ind. 144; Jordan v. Stewart, 23 Pa. St. 244; Williams v. Davis, 69 Pa. St. 21. Other errors are assigned by the appellant, but, believing that the determination of the questions already considered in favor of the appellant will entitle him to a new trial, we will not stop to consider the other questions presented by the record. The judgment of the district court will be reversed, and the .cause remanded for a new trial. LONG, C. J., and LEE and MCFIE, JJ., con. (2 Idaho [Hasb.] 642) cur. 1. When a motion for nonsuit is made by de fendant at the close of plaintiff's testimony because of its insufficiency, and overruled, if defendant then introduces his testimony, he waives his right to have the error in overruling the motion re viewed. 2. A judgment will not be reversed when there is a substantial conflict in the testimony, or unless it seems the result of passion or prejudice. 3. When an election is so irregular and fraudulent that the true result cannot be ascertained from the returns of the poll, they should be rejected, and the true result shown by other evidence.1 (Syllabus by the Court.) Appeal from district court, Bingham county; C. H. BERRY, Judge. Hawley & Reeves and W. H. Savidge, for appellant. Smith & Smith and John T. Morgan, for respondent. BEATTY, C. J. At the general election held in November, 1888, the parties to this action were opposing candidates for the office of sheriff of Bingham county, to which the appellant was declared elected. The respondent, in pursuance of our statute for "Contesting Certain Elections," beginning with section 5026, commenced this action of con. test, alleging as the ground thereof-First, malconduct of the board of judges of election in Rexburg precinct, in said county; and second, that illegal votes were cast in said precinct, and counted for appellant. At the trial of the cause, when respondent closed, appellant interposed his motion for nonsuit, which being overruled, he proceeded with the introduction of his testimony. By the judgment of the court the respondent was declared electto said office, and the appellant here asks its reversal. N. Laughlin, on the last page of the contract, was in the handwriting of William Breeden. We think the evidence of the appellee, Kirchner, as to the declarations of Breeden and Wiley concerning the letter claimed to have been written by Laughlin, was improperly admitted, for the reason that the evidence in the case does not satisfactorily establish thated either Breeden or Wiley was, at the time, an agent of Laughlin. The declarations of an agent are only admitted when the agency is proved. To permit the proving of an agency by proving the declarations of the agent would be assuming it without that which is a prerequisite to the admissibility of the declarations. It would be without reason or logic to say that an agent's declarations were admitted because he was an agent, and that he was an agent because his declarations were admissible. "Hence the rule is settled that such declarations cannot be received until there be proof of the agency aliunde." Whart. Ev. § 1183; Breckenridge v. McAfee, v.23P.no.3-12 All the alleged errors complained of by appellant may be considered under the following subdivisions: (1) That the court erred in overruling his motion for nonsuit because respondent's testimony was insufficient to warrant a judgment is his favor; (2) that the findings do not support the judgment; (3) that the court failed to find on all the issues raised; and (4) that the judgment is not warranted by the facts and the law. The consideration of these questions has required an examination of perhaps the most voluminous record that has ever been sub 1 See note at end of case. |