Burke County NcArchives Court.....Greenlee & Martin, Joseph Watt V. 1819
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File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 18, 2009, 6:19 pm

Source: Nc Reports
Written: 1819

Joseph Watt v. James Greenlee and Asa Martin

From Burke

May Term 1819

Where, upon the trial of a State's warrant for larceny, the Justice records 
the testimony of the prosecutor, the person prosecuted may, in an action for a 
malicious prosecution, give such parol evidence of this testimony, as is 
consistent with the written statement, and tends to a more exact specification 
of the thing stolen.

This was an action to recover damages of Defendants for having prosecuted 
maliciously the Plaintiff for larceny. Upon the return of the State's warrant 
against the Plaintiff, before a Justice of the Peace, Asa Martin, one of the 
Defendants in this action, appeared and gave evidence, and his evidence was 
reduced to writing by the Justice, and returned to Court. As written, it 
stated, that about the last of September, 1811, Benjamin Garrish brought to 
him a piece of a band that belonged to a hammer shaft of certain Iron Works 
that had been destroyed by a freshet; that he, the witness, made scallop iron 
of the piece of band for Joseph Watt, and Garrish said he brought the piece of 
band to the shop, for and at the request of Joseph Watt. Watt was prosecuted 
for stealing this piece of iron, and acquitted; and then instituted this suit.

Upon the trial, a witness was admitted by the Court, to prove, that before the 
Justice, Asa Martin swore, that the iron he charged Joseph Watt, with 
stealing, was the front hoop of a hammer-shaft. The introduction of this 
evidence was objected to, on the ground that the testimony given by Martin 
before the Justice, had been reduced to writing by the Justice, and that did 
not state the fact as sworn to by the witness. There was a verdict for the 
Plaintiff; and a rule for a new trial being obtained, on the ground of 
improper evidence having been received by the Court, the same was discharged, 
and the Defendants appealed.

Taylor, Chief-Justice: This was an action for a malicious prosecution, wherein 
a verdict was found for the Plaintiff, and upon a motion for a new trial being 
overruled, the Defendants appealed. The ground of the motion was the admission 
of improper testimony by the Court, in allowing a witness to prove, that on 
the trial before the magistrate, the Defendant Martin, stated, that the iron 
he then alluded to, was the front hoop of a hammer-shaft; whereas, the 
statement of his evidence returned by the magistrate was, that Garrish brought 
to him a piece of a band that belonged to the hammer-shaft after the iron 
works were destroyed. The question does not arise in this case whether parol 
evidence is admissible to contradict the written statement by the magistrate; 
for the evidence received is entirely consistent with it, and tends only to a 
more exact specification of the iron described by the party. A piece of a band 
that belonged to a hammer-shaft, may be the front hoop of a shaft; and if 
Martin did, in truth, so describe it, and it became necessary on the trial of 
the cause, that the very description he gave, should be repeated, there is 
nothing to forbid such evidence. We, therefore, think the rule for a new trial 
should be discharged.


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