Frost v. De Lury ( 1886 )

By the Court.—Sedgwick, Ch. J.

The defendant had caused the arrest of the plaintiff without warrant. The plaintiff was the clerk of the defendant. The charge was that the plaintiff had stolen or embezzled about $19 from the defendant. The plaintiff was duly tried and was acquitted.

On the present appeal two exceptions may be noticed. The plaintiff, as a witness, testified without objection from defendant, that he sent his wife and child to her father’s house in consequence of the arrest, because he did not have sufficient means to support them, and that this was occasioned by his dismissal from the defendant’s employment and being unable to obtain any other lucrative employment. Then was asked the question, “ How long was she at your father’s house ? ” There was a general objection, which was overruled. If the question were objectionable in itself, the defendant had hy not objecting to the matter immediately preceding, made it legitimate testimony, leaving as the only inquiry on the question objected to, whether that question was calculated to make more specific the preceding testimony. If the defendant meant to turn the attention of the court to the inadmissibility of the earlier testimony, it should have been done in a specific way.

The other exception was taken after the plaintiff had testified that after he was locked up, he made an effort to get the attention of somebody. He was then asked, “What did you do?” The witness answered, against defendant’s objection, “ I rattled on the door, called and made all the noise I could to attract attention. There was no heed paid to it by any one.” The reason urged for the inadmissibility of the answer is, that the defendant was not responsible for the omission of the jailer to go to the plaintiff. The defendant was responsible for the damages flowing from the imprisonment and its usual concomitants, and the answer described such an imprisonment. It does not imply that the jailer’s omission was a personal wrong on Ms part.

The defendant’s counsel did not on the trial or on the appeal, meet the point of whether a party charged as plaintiff was could be legally arrested without warrant.

The defendant was not entitled to a new trial on any ground taken by the motion for a new trial.

Judgment and order appealed from affirmed with costs. ‘ •

Htg-bahlam, J., concurred.