The opinion of the court was delivered by
Pierpoint, C. J.The only questions in this case arise on the admission of certain evidence offered by the plaintiff.
The first objection made by the defendant is to the admission of the testimony of Milton E. Smith, an insurance agent. The defendant testified that on the day after his barn was burned, he sent his wife to Smith to get the policy upon his house. The plaintiff then introduced said Smith, who testified that the plaintiff’s wife came to him the next morning after the fire, told him about it, and asked for the policy, and he supposed she meant the policy on the barn, but soon ascertained that she wanted the policy on the house, which she paid for and took, and not a policy on the barn. The statement by the witness of what he at first supposed she meant, was not strictly admissible, but being followed *708immediately by the statement that he was wrong in his supposition, and that it was the policy on the house that she meant, we cannot conceive it possible that any injury to the defendant could have resulted from it. And if counsel in the argument had attempted to make an improper use of it, the court, on its attention being called to it, would have prevented it, or would have set the matter right in the charge, which, for aught that appears in the case, was done.
The plaintiff, for the purpose of showing that the defendant entertained hostile feelings towards him, and as tending to show that he had instituted and was aiding in the prosecution then pending against him, from malicious motives and without probable cause, introduced testimony to show that while said prosecution was pending, the defendant attached and took away the plaintiff’s property, and when the defendant’s debt was paid, procured other persons to attach the same property, and thus, by successive attachments, kept said property in the defendant’s possession and away from the plaintiff. It does not appear that any of these acts were illegal. The defendant had a right to secure his debt by attachments, and so had the other persons. There may have been no violation of law, yet, the circumstances under which the acts were done, and the manner of doing them, may have been such as to indicate very clearly that the defendant was acting in an unfriendly and a hostile spirit, and tend to show that the defendant entertained a malicious spirit towards the plaintiff, and a desire, not.merely to collect his debt, but to injure him. We think the course the defendant pursued in respect to this matter, as related by the witness, tended to show a hostile spirit on the part of the defendant against the plaintiff. The question for the jury to settle was, with what motive the defendant instigated and aided the criminal prosecution against the plaintiff ? This, of course, relates to the time of the prosecution. Was he then actuated by malice, and without probable cause ? To show how this was, it was competent for the plaintiff to show the feeling manifested by the defendant toward the plaintiff, both immediately before and after the prosecution was instituted. It is, ordinarily, only in this way that in cases like this the state of feeling at the material *709time can be established ; and to this end we think the testimony was properly admitted. Its weight, under the circumstances of the case, was for the jury.
For the reasons above stated, the declarations of the defendant, as testified to by the witness Packard, were properly admitted.
It appears from the exceptions that when the officer arrested the plaintiff on the warrant issued in said prosecution, he took from him his boots, and left them with one Wilson, to be kept until they should be produced in court; and that after this, and before the time of the court, the defendant went with the officer to Wilson for the purpose of examining or measuring the boots. The defendant put in evidence tending to prove that tracks had been found that he claimed were made by the plaintiff in going and returning from the-barn that was burned, and it was doubtless in connection with this claim that the defendant desired to examine or measure the boots. There was nothing in this to show the motive of the defendant, whether good or bad ; but it was material for the plaintiff to show that the defendant took an active part in that prosecution ; and proof that he was with the officer, seeking for evidence that might be used against the plaintiff in that proceeding, was admissible. The motive with which it was done might be shown by other evidence.
Judgment affirmed.