Upon the trial in the Superior Court, it was not disputed that the plaintiff was prosecuted for a theft of $17 from the defendants, in consequence of a complaint made by them to the city attorney of New Haven, and that he was acquitted of the charge. In order to make out his *518case, lie was bound to show that they acted from malice, and he asked the jury to infer this from the fact (among others) that they knew he took the money under a claim that he had attached it, on a writ against an actress, named Pardee, in which they, and also one Clark, had been made garnishees. The defendants denied that it was her property; and it appeared that it consisted of certain bank bills taken in by Peterson, one of the defendants, for tickets sold by him as treasurer of an opera house belonging to Bunnell, the other defendant, at the box-office, on a night when Miss Pardee was taking part in a play upon the stage. The plaintiff introduced evidence that he began the service of the writ by leaving a copy with Peterson, as a garnishee, and taking possession of $12 in bills which he found in the box-office, stating at the same time to Peterson that he attached it; that Peterson then disclosed that he was not indebted to Miss Pardee; and that the bills were claimed by Bunnell as his property and also by Clark as his. The defendants introduced evidence tending to show that the plaintiff went away after leaving the copy with Peterson, and then, some time later, came back stealthily, thrust his hand through the window of the box-office, seized the bills, without any word of explanation, and made off with them; and that when Peterson afterwards made up his accounts for the evening’s sales, he found that $17 was missing. Peterson was then asked as a witness in their behalf, to state the method in which he handled the receipts from the different classes of shows for which he sold tickets; their claim being that as to one class, he acted as the agent of the defendant Bunnell, but as to another, as the agent of outside parties, who hired the opera house for the night; that on the night in question he was selling tickets for shows of each class ; and that it would appear from his answer how they had come to the result that the sum taken by the plaintiff was $17, instead of $12, as claimed b}r him. Bunnell was also asked by his counsel whether it was possible for him to tell to whom the receipts at the box-office, at any night, belonged, without consultation with Peterson, when the latter had been selling tickets for three different shows.
*519In determining whether the defendants had probable cause for believing that the plaintiff stole $17 of their money, among the proper subjects of inquiry would be how much money was taken, and whether it was or was not believed by them to be theirs. If Peterson’s position was such as to make him accountable to Bunnell for certain receipts, and to third parties for other receipts, according to the class of show, for which he might sell tickets, and he only could tell what kind of tickets he had sold on any particular night, these were facts which the defendants had a right to bring out in testimony. There was error, therefore, in excluding each of these questions.
The plaintiff testified that before serving his writ he saw persons buy tickets from Peterson, and then pass into the theater, and it appeared that Miss Pardee had assigned her interest in the receipts to Clark. The defendants claimed that all that was due to Clark had been paid, prior to the attachment, and for the purpose of showing this asked Peterson why he did not owe Clark, that night, which question was excluded. The cause of objection is not stated upon the record, and the ruling is therefore to be upheld, if there is any ground upon which it can be supported. The question was obviously a leading one, unless the witness had already testified that he did not owe Clark, and as the finding does not show that any such testimony had been given, it follows that the record discloses no error in its exclusion.
The plaintiff having produced record evidence of his arrest, as alleged in his complaint, upon the prosecution for theft, the defendants offered evidence that he voluntarily surrendered himself to the officer who had the warrant, and was never really arrested at all. Objection was made and sustained to this evidence, on the ground that the plaintiff made no claim for damages for any ill-treatment, harshness, or physical injury in making the arrest, but only for the ignominy and disgrace brought upon him by the prosecution. The defendants’ exception to this ruling is well taken. They could fairly make claim that less of ignominy and disgrace was incident to a prosecution in which the plaintiff was not subjected to an *520actual arrest, than to one in which his person was taken into the custody of an officer, and the testimony which the question asked was calculated to elicit would have been entitled to consideration in mitigation of damages.
The plaintiff testified on cross-examination that he did not know when he took the money that it belonged to Miss Pardee, though he supposed it did. On his re-direct examination he was asked whether he believed it to be hers, and replied in the affirmative. This question was properly admitted. While he was not on trial for theft, he had the burden of proving that the defendants had charged him with that offense without probable cause. His admission that he took the bills without knowing that they were Miss Pardee’s property, might have been used against him in the argument to the jury with more effect, had he not been allowed to explain it, by affirming his belief in her title.
The plaintiff wfas asked on cross-examination whether he did not understand, when he left the copy with Peterson, that if the latter then had any money of Miss Pardee’s in his hands the garnishment tied it up. This question was erroneously excluded. If he did understand such to be the law, he must also have understood that his subsequent seizure of the money in Peterson’s possession was improper, and it was a legitimate argument to address to the jury, that, under such circumstances, he took it not under his writ, but as a mere wrong-doer, whom ordinary men, who had not had a legal education, might well suppose to occupy the position of a thief.
The sergeant of police who heard the defendants’ states meats to the city attorney (as to the nature of which there w'as contradictory evidence), was asked by their counsel whether they had made the same statements to him. This question was properly excluded. A witness cannot thus be allowed to testify in gross as to the similarity of separate and distinct conversations with different persons, on the same subject.
The defendants, upon the rendition of the verdict, moved in the Superior Court to have it set aside, on the ground that it wras against the evidence. After due consideration *521this motion was denied, a few days later, whereupon, and within six days after judgment, they filed a similar motion, to obtain thé same relief from this court, under the Act of 1893 (Public Acts of 1893, Chap. LI, p. 228). It was informally drawn, being simply entitled by the caption in the cause in the Superior Court, and not addressed, as it should have been, to this court. Passing by this defect, however, we are of opinion that the verdict was not so palpably contrary to the evidence before the jury as to require us to grant a new trial upon this motion. In the determination of this question, great weight is due to the action of the trial court, in denying the original motion filed immediately upon the conclusion of the trial, when the whole case was fresh in its recollection. Its decision did not, indeed, preclude the defendants from bringing the case here upon another motion to the same effect; but it is only in a clear case that, under such circumstances, we should feel justified in coming to a different result. Bissell v. Dickerson, 64 Conn. 61, 72; Johnson v. Norton, ibid. 135.
The motion to set aside the verdict as against evidence, is denied; but there is error on the appeal, and upon that a new trial is ordered.
In this opinion the other judges concurred.