Usher v. Skidmore

Citations

• 28 Tex. 616

Syllabus

<p>The plaintiffs brought their suit for a malicious prosecution against a husband and wife, and in their petition alleged that “the defendants ” made the affidavit for the arrest which constituted the gravamen of the action. At the trial the plaintiffs offered in evidence the affidavit, but it appeared on investigation to have been made by only one of the defendants, and, on objection, it was excluded by the court. The plaintiffs amended by leave of the court, and alleged the affidavit to have been made by the defendant whose name appeared to it, instead of,by both defendants, as alleged in the petition. Thereupon the defendants, treating the amendment as a new cause of action, plead in bar of it the statute of limitation of twelve months. (Paschal’s Dig., Art. 4604, cl. 2.) Proceeding with the trial, the plaintiffs again offered in evidence the affidavit, but it purported on its face' to have been made more than twelve months previous to the amendment, and on objection by the defendants, based on their plea of limitation, it was again excluded by the court: Held, that the amended petition did not introduce a new cause of action, but merely corrected an inaccurate averment of an immaterial fact unnecessarily alleged in the original petition.</p> <p>In suits for a malicious prosecution, the cause of action consists, not in the affidavit to obtain a warrant of arrest, but in the arrest and confinement under the charge of felony preferred,' and the cause of action is not complete until the discharge of the accused.</p> <p>In an action for a malicious prosecution, the facts about the arrest, may be proved by other evidence than the affidavit, and all participants in the arrest are liable to the action.</p>