John W. Pomeroy vs. Peter Golly, 1 Georgia Decisions 26

In this case, there being evidence of defendant’s sayings, both before and after taking out the warrant to arrest the plaintiff, the Court charged the Jury — That if they believed, from the evidence, that the defendant was acting under an honest conviction, that the plaintiff was the one who committed the forgery: then there was probable causo for the prosecution, and they must find for the defendant.

But if, from the evidence before them, they believed that the defendant was not acting under such conviction of plaintiff’s guilt, and was induced, by the persuasion of others, and also to enable him to make a settlement with the bank on better terms ; then there was a want of probable cause ; and, from a want of probable cause, they, by Law, had a right to infer malice, and in that event, to find for the plaintiff such damages as they, from the evidence, believed him entitled to.

The Jury having exercised their legal right, and having found against the state of facts which constituted a probable cause, and they having found in favour of that state of facts which shew a want of probable cause, and thereby inferring malice, and assessed such damages as they believed just — Would not this Court be assuming the right of the Jury, were it to set their verdict aside, because they did not find the facts the other way ? It most certainly would assume such power, and which this Court has not the legal power to do. It cannot, therefore, disturb the verdict on this ground.

The next ground is — That the Court erred, by permitting the original affidavit and mittimus to go to the Jury, upon proof of the Justice’s signature, and that he was an acting Magistrate. It is contended, that the Justice ought to be produced to prove his own hand writing. By referring to the cases, we find that the Justice has been introduced to prove his warrant and mittimus, but it does not appear that any point was made whether other evidence, such as his hand writing, may not be proved — and, in 2nd. Espin. N. P. 128, I find Mr.

Justice Bullek allowed an office copy of an affidavit to hold to bail, to be good evidence, without producing the original, in this kind of action. But in this case, the original affidavit and warrant and mittimus were before the Court, and proof of the hand writing was, in the opinion of this Court, competent evidence of the fact. The Court will therefore refuse a new trial, on this ground. The other ground taken, is, that the damages are excessive.

In an action of this nature sounding in tort, the Court would not inter, fere, unless in some case where the Jury had rendered such a verdict as would satisfy the Court, that they acted more from prejudice than sound judgment. Two Juries having concurred in finding this amount, this Court will not, for that cause, set their verdict aside. A new trial, upon all the grounds, is therefore refused. JOHN SCHLY, Judge Superior Courts, Middle District, Georgia⅜⅛