Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-26
SUPREME COURT OPINIONS
September Term - Knoxville;
1870.
Joseph Is. Heiskell, Attorney Gen;
eral and Reporter.
No. 81.

Jas. Heatherly VS.. Andrew Bridges.
Where the bill for Exceptions does not pur-
cheney of proof, however great, will author
iEe reversal.
An appeal in forma pauperis, is allowable in
actions for false imprisonment, malicious
prosecutions and slanderous words, on behalf
Of defendant against whom judgment is
rendered.
Code construed, SIS, 1888 1892.
Admission of irrelevant matter before q
jury, and Its subsequent withdrawal, though
not error, is strongly reprehended.
Acts of the family of defendant in tres
pass. with which he is not shown to have been
connected, are not admissible evidence against
him.
Evidence objected to, may be so connected
with evidence not objected to, as 10 make its
admission error, when it would not alone be
so material as 10 constitute error.
From the Circuit Court of Campbell
county, L. c. Houk, j., presiding.
Baxter, Champion 6 Kicks for plaintiff
in error.
L. A. Gratz, for defendant.
OPINION.
This was an action of trespass, vi ct
armies, from the Circuit Court of Camp
bell county, for an alleged assault and
battery, and false Imprisonment, COM
mitted by James Heatherly upon the per-
son of the defendant in error, Andrew
Bridges. The transaction upon which
the action is based, occurred during the
civil war. The action was commenced
on the 29th of September, 1866, and the
cause was submitted to jury at the Au-
gust term, 1867, and resulted in verdict
and judgment against Hestherly. The
bin of exceptions does not show that it
contains all the testimony adduced upon
the trial, nor does it contain any words
which would clearly import that fact.
The plaintiff below, Andrew Bridges,
was arrested by party of Confederate
soldiers, and taken to "Speedwell Camp
ground, where it seems he was tried
upon some accusation not shown in the
proof, and discharged. He was retained
in custody about forty eight hours-and
according to the proof, here disclosed, he
was subjected to no harsh or cruel treat
ment. The jury awarded him a verdict
for two thousand dollars, the amount he
claimed as damages. We are to presume,
under eur rules of practice, that there
was ample testimony to sustain this YER
dict and judgment, and we cannot there
fore disturb it on the facts of the case.
A motion is made at the bar to dismiss
the appeal, on the ground that it was
taken in forma pauperis, and we are re-
ferred to section 3,192, of the Code,
which allows the bringing of suits in
lorna pauperis, except for "false i'm
prisonment, malicious prosecution and
slanderous words" This section refers
to the bringing of the actions mentioned,
which, for obvious reasons, are forbidden
to be brought, unless the party, plaintiff,
shall first give security for costs. 1t has
no reference to prosecution of an appeal
by a party, defendant, against whom a
verdict and judgment have been rendered
in either of these actions. The law is
very liberal in allowing appeals in forma
pauperis. The Code, it is true, in its
terms, seems to contemplate only the in
Stitution of q suit in this form, but it pro-
vides that either party to an action at law
in the Circuit Court msy, at the term at
which final judgment is rendered, pray
an appeal in the nature of q
writ of error, to the Supreme Court, and
the courts by construction, have uniform
| ly extended the remedy, in forma paupe-
ris, to appeals, appeals in error or Writs
| VI NlAOL ouO OJuOl pIOCcS5. IL
said that the prosecution of a certiorari
by defendant, in fOrcible entry aud de-
tainer, is an exception. Norton VS..
Whiteside, 5 Hump, 981. And under
the Code, no supersedeas shall issue upon
application in forma psuperis, without
express order of the Judge dispensing
with security. Such order may be made
by the Judge, only on notice to the ad-
verse party, of the application S 1888.
We are aware of no other restrictions
upon the exercise of this remedy; and we
are of opinion that the right of party to
appeal in lorna pauperis, from a judg
ment of false imprisonment, is not affect
ed by S,192, of the Code.
We are asked to reverse this judgment,
because the damages are excessive; be-
cause, in the language of the counsel the
verdict shocks the moral sense and de-
monstrates that it is the result of passion
and prejudice. We cannot assume that
the verdict is unwarTanted by the facts,
for we have no assurance that the facts
are all before US. We have no hesitation
in pronouncing upon the utter insuffici-
ency of the testimony disclosed in this
record to support verdict so extraordin-
airy; but we dare not impute to the Jury
either rashness, prejudice or passion, as
we are bound by the rules of law to pre-
sumo that this record does not advise us
of all the testimony upon which they
acted, and we cannot, therefore, disturb
this judgment, on the ground that the
damages are excessive. We are again
asked, to reverse the judgment and award
new trial, upon the ground that the pre-
siding Judge erred in permitting certain
illegal and improper evidence to go to the
| jury; and the counsel for the defendant
in error admits, with an honorable frank
ness, that there was some illegal evil
dence thus admitted, bat he insists
that it was so done without OBJ
| lection. 1t is true that this court has re-
peatedly held that illegal evidence, admit
ted without objection, cannot be assigned
as error; Cooke 102. Hudson VS.. The
State, Yerg. 40S. Ewell VS.. The State,
6 Yerg. 1854, SIC. But this rule, like
many other doctrines of the law of evi.
dence, has its exceptions and modifica-
tons. We do not suppose that evidence,
simply illegal, though objected to, would
justify the granting of new trial, unless
snch evidence was hurtful, or likely to
prsys 50, to the cause of the party Oh