Roth v. Smith

Citations

• 54 Ill. 431

Syllabus

<p>1. Evidence of a deceased witness—in what manner it may he proven. The testimony of a deceased witness at a former trial can not be shown by the bill of exceptions taken at that trial, but may be proved by any one who heard and could remember his evidence.</p> <p>2. False imprisonment—evidence in mitigation of damages. In an action to recover for the alleged illegal arrest and imprisonment of the plaintiff, during the late war of the rebellion, on the procurement of the defendant, on the charge of discouraging enlistments in the army, the arrest having been made by a federal officer on an affidavit of the defendant, it is competent for the defendant to prove that the plaintiff had, in fact, discouraged enlistments.</p> <p>3. Such evidence was admissible, not in bar of the action, but in mitigation of damages, as it explained the circumstances of the arrest, and tended to show that the defendant, so far as he participated in it, was not actuated by malice.</p> <p>4. Measure oe damages in such case—whether compensatory only, or vindictive. If, in such case, the arrest of the plaintiff was made on the procurement of the defendant, upon the affidavit of the latter charging the plaintiff with having discouraged enlistments, and the affidavit was not true, the jury should presume malice, and award heavy vindictive damages.</p> <p>5. If, on the other hand, the affidavit was true, and the jury could see that the defendant, in making it, even though he voluntarily furnished it to the officer, and advised the arrest, acted without malice, and from proper motives, they should give only compensatory, not vindictive damages.</p> <p>6. Same—of evidence in aggravation of damages—admissibility of evidence in rebuttal of that which was improperly admitted. In such an action, it is not competent for the plaintiff to prove, in aggravation of damages, that the defendant had charged him with cowardice on the field of battle; and though such evidence was offered, and admitted without