Chapter V: Malicious Prosecution and Abuse of Process (2)

This case was argued twice at the bar, in two former terms by Serjeant _Hewitt_ and Serjeant _Burland_ for the defendant, and by Serjeant _Whitaker_ and Serjeant _Nares_ for the plaintiff; and in this term the Lord Chief Justice gave the opinion of the whole court, that judgment must be for the plaintiff.

LORD CHIEF JUSTICE. Upon the arguing of this case, the first objection was, that this action will not lie, there being a remedy given by statute, that a proceeding on a commission of bankruptcy, was a proceeding in nature of a civil suit; and that no action of this sort was ever brought: but we are all of opinion that this action is maintainable.[402]

The general grounds of this action are, that the commission was falsely and maliciously sued out, that the plaintiff has been greatly damaged thereby, scandalized upon record, and put to great charges in obtaining a _supersedeas_ to the commission; here is falsehood and malice in the defendant, and great wrong and damage done to the plaintiff thereby. Now, wherever there is an injury done to a man’s property by a false and malicious prosecution, it is most reasonable he should have an action to repair himself. See 5 Mod. 407, 8; 10 Mod. 218; 12 Mod. 210. I take these to be two leading cases, and it is dangerous to alter the law. See also 12 Mod. 273; 7 Rep. Bulwer’s case, 1. 2 Leon. —— 1 Ro. Abr. 101; 1 Ven. 86; 1 Sid. 464. But it is said this action was never brought; and so it was said in Ashby and White; I wish never to hear this objection again. This action is for a tort; torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief, and this of suing out a commission of bankruptcy falsely and maliciously, is of the most injurious consequence in a trading country.

It is further said the stat. 5 Geo. 2, has given a remedy, and therefore this action will not lie; but we are all of opinion, that in this case the plaintiff would have been entitled to this remedy by action at common law, if this Act had never been made, and that the statute being in the affirmative, hath not taken away the remedy at law. 2 Raym. 163. And this is a universal rule, that an affirmative statute is hardly ever repealed by a subsequent affirmative statute, for if it is possible to reconcile two statutes they shall both stand together; if they cannot be reconciled, the last shall be a repeal of the first; but the most decisive answer is, that this statute-remedy is a most inadequate and uncertain remedy; for though there be the most outrageous malice and perjury, and the party injured suffer to the amount of ten or twenty thousand pounds, yet the Chancellor has no power to give him more than the penalty of £200; besides, the method of applying to the Chancellor, is more tedious, expensive, and inconvenient than this common law remedy, and this case in its nature is more properly the province of a jury, than of any judge whatever.

It is further objected, that in the third count there is no averment that the plaintiff was not indebted to the defendant, or ever committed an act of bankruptcy; but no case was cited to show such averment to be necessary; the ground and substance of the declaration is falsehood and malice; there are no instances of such averments in conspiracy, that the party was innocent, or did not do the fact on which he was indicted, but the precedents are the other way. In an action for words, as for saying a man is a thief, the plaintiff has no occasion to aver he is not a thief, and this case is analogous; for after the plaintiff has alleged that the commission was false and malicious, it would be tautology, to make such averment that he was not indebted, &c., and this declaration would have been good on a demurrer; more clearly it is so, after a verdict.

_Judgment for the plaintiff._

TOMLINSON _v._ WARNER
SUPREME COURT, OHIO, DECEMBER, 1839.
_Reported in 9 Ohio Reports, 104._

Malicious prosecution. From Licking. The plaintiffs declared that they
were residents of the town of Newark, and possessed of a large amount
of personal property, deposited in a warehouse to be forwarded to New
York, for a market; and that the defendant well knowing the premises,
and that the plaintiffs had not absconded, but contriving and
maliciously intending wrongfully to injure them, made oath before a
justice of the peace, that they had absconded to the injury of their
creditors, as he verily believed, and thereupon sued out of the Court
of Common Pleas, a writ of attachment, and caused the said property to
be seized by the sheriff, and held for a long time, whereby the same
was injured, the plaintiffs deprived of the opportunity of forwarding
their goods to a market, and greatly injured. Plea, not guilty.

Upon trial to the jury, the counsel for the plaintiffs admitted that
the plaintiffs were indebted to the defendant at the time of his
affidavit, as sworn to in it; whereupon the court directed a nonsuit,
with leave to move to open it, and for a new trial, which is now
made.[403]

By the Court, WOOD, J. The only question presented in this motion, is,
do the facts set forth in the declaration constitute a legal cause of
action, provided the plaintiffs were indebted to the defendant, when
he sued out the writ of attachment?

In Connecticut, there is a statute which provides, that where a
plaintiff shall “willingly and wittingly” wrong any defendant by
prosecuting any action against him with intent wrongfully to trouble
and vex him, such plaintiff shall pay treble damages for the first
offence, be liable to a fine for the second, and for the third, may be
proceeded against as a common barrator. Judge Swift thinks the act
founded in the clearest principles of justice. Swift Dig. 493. At
common law, it seems well settled, that no action will lie for a
malicious prosecution of a civil suit, without cause, where there is
no arrest. I Salk. R. 14. The costs allowed in all other cases are
supposed to be a sufficient compensation for the injury, however
malicious. The rule itself may perhaps be admitted, but the reason on
which it is said to be founded cannot be so readily admitted, for at
common law no costs were allowed. If the plaintiff failed, he was
amerced for his false clamor, and if he succeeded, the defendant was
at the mercy of the King. But at common law, whenever there was an
arrest, holding to bail, or imprisonment, where no debt was due, or
for a greater sum than was due, with a malicious intention to injure,
the action lay for a malicious arrest. 1 Saund. R. 228. The action for
a malicious prosecution, which technically only applies to cases of
malicious prosecution of criminal complaints, lies as well where there
is not, as where there is an arrest; and the grounds of the action are
the malice of the defendant, want of probable cause, and injury to the
plaintiff’s person by imprisonment, his reputation by scandal, or to
his property by expense. 1 Swift Dig. 491. Having no direct
adjudication on the question before us, we may look to the analogies
of the law. The counsel for the defendant insist that because the
plaintiffs’ indebtedness to the defendant in the former suit is
admitted, there was probable cause for suing out the writ of
attachment. This does not seem to us to follow. To constitute probable
cause for suing out a writ of attachment, the law requires an
affidavit of indebtedness, and also that the debtor has absconded, or
is non-resident. The absence of either is absence of probable cause
for the writ, and the false affirmation of either fact, knowingly, as
a means of procuring the writ, shows express malice, whilst the taking
of property without cause is a sufficient injury to sustain the
action.

In the Supreme Court of New York, it has been decided, that case would
lie against both plaintiff and defendant, for fraudulently setting up
the judgment as unsatisfied, when in fact paid, and causing an
execution and sale of land once held by it as a lien, but which had
been afterwards conveyed by the defendant to a third person. The court
in that case say, “If it appear that the unlawful acts of the
defendant occasioned trouble, inconvenience, or expense to the
plaintiff, this action lies.” The general rule is, that for every
injury the law gives redress; and it would be a reproach to the
administration of justice, if one, by perjury, could take from another
the control of his property, under form of law, and the law afford no
remedy. Nice technicalities are sometimes applied to get rid of a hard
case; but when, under form of law, opportunity is sought to gratify
malice, to the injury of another, courts will not be astute to avoid,
but rather seek ground to sustain an action. We have no facts in this
case, before us, but the statement in the declaration, and the
admission of indebtedness; but these show a sufficient prima facie
cause of action, and cause for opening up the nonsuit.

_New trial granted._[404]

WETMORE _v._ MELLINGER
SUPREME COURT, IOWA, APRIL 9, 1884.
_Reported in 64 Iowa Reports, 741._

BECK, J.[405] The petition alleges that defendants brought an action against plaintiff and his wife, charging in the petition that they two conspired and confederated together to defraud defendants, by representing to defendants, under the assumed name of Baker, that they were the owners of certain lands in Poweshiek County, which defendants were induced to purchase of plaintiff and his wife, who, in such assumed name, executed to defendants a warranty deed therefor; that, in an action by one Woodward, a deed, purporting to be executed by him to the Bakers, under which they claimed title to the lands, was declared to be void, for the reason that it was forged and fraudulent, and that plaintiff herein and his wife well knew the condition of their title, and representing that they were the owners thereof, for the purpose of cheating defendants, and of obtaining money by false and fraudulent pretences, and did, in that manner, obtain the sum of $3,000 from defendants. It is further alleged that defendants herein served out a writ of attachment in the suit brought by them, which was levied upon real estate owned by plaintiff’s wife, and that defendants for a time prosecuted their action, but finally dismissed it at their own costs. Plaintiff, in his petition in this case, alleges that he was not indebted to defendants in any sum at the time their action was brought against him; that he was not guilty of the frauds therein charged, and that the action was commenced and prosecuted by defendants maliciously and without probable cause. The defendants, in their answer, admit the commencement of the suit, the issuing of the attachment, and that it was levied upon real estate owned by plaintiff’s wife. There was no evidence showing, or tending to show, that the writ of attachment was levied upon any property owned by plaintiff. The wife of plaintiff does not join in this action.

We think the doctrine is well established by the great preponderance of authority that no action will lie for the institution and prosecution of a civil action with malice and without probable cause, where there has been no arrest of the person or seizure of the property of defendant, and no special injury sustained, which would not necessarily result in all suits prosecuted to recover for like causes of action.

See 1 Am. Leading Cases, p. 218, note to Munn _v._ Dupont _et al._, and cases there cited; Mayer _v._ Walter, 64 Pa. St. 289; Kramer _v._ Stock, 10 Watts, 115; Bitz _v._ Meyer, 11 Vroom, 252, S. C. 29 Am. Rep. 233; Eberly _v._ Rupp, 90 Pa. St. 259; Gorton _v._ Brown, 27 Ill. 489; Woodmansie _v._ Logan, 2 N. J. L. 93 (1 Pen.); Parker’s Adm’rs _v._ Frambes, Id. 156; Potts _v._ Imlay, 4 N. J. L. 330 (1 South.)

This doctrine is supported by the following considerations: The courts are open and free to all who have grievances and seek remedies therefor, and there should be no restraint upon a suitor, through fear of liability resulting from failure in his action, which would keep him from the courts. He ought not, in ordinary cases, to be subject to a suit for bringing an action, and be required to defend against the charge of malice and the want of probable cause. If an action may be maintained against a plaintiff for the malicious prosecution of a suit without probable cause, why should not a right of action accrue against a defendant who defends without probable cause and with malice? The doctrine surely tends to discourage vexatious litigation, rather than to promote it.

It will be observed that the statement of the doctrine we have made extends it no farther than to cases prosecuted in the usual manner, where defendants suffer no special damages or grievance other than is endured by all defendants in suits brought upon like causes of action. If the bringing of the action operates to disturb the peace, to impose care and expense, or even to cast discredit and suspicion upon the defendant, the same results follow all actions of like character, whether they be meritorious, or prosecuted maliciously and without probable cause. They are incidents of litigation. But if an action is so prosecuted as to entail unusual hardship upon the defendant, and subject him to special loss of property or of reputation, he ought to be compensated. So, if his property be seized, or if he be subjected to arrest by an action maliciously prosecuted, the law secures to him a remedy. In the case at bar, the pleadings and evidence show no such special damages. No action could be prosecuted to recover money fraudulently obtained, in which the defendant would not suffer the very things for which plaintiff in this case seeks compensation in damages.

Counsel for plaintiff, in support of their position that the action may be maintained, though no arrest of defendant or seizure of property be had in the proceeding alleged to have been maliciously prosecuted, cite Green _v._ Cochran, 43 Iowa, 544, and Moffatt _et al._ _v._ Fisher, 47 Id. 473. In the first case, the action alleged to be malicious was a proceeding for bastardy, which, under the statute, operated as a lien upon defendant’s lands from the commencement. In the other case, the action which was the foundation of plaintiff’s claim was forcible entry and detainer, and, before final disposition thereof, the defendant was ousted of possession of the land, whereon was a coal mine. In both instances the property of the respective defendants was reached by the proceedings. The facts of these cases are not within the rule we have stated, and do not support counsel’s position.

_Affirmed._[406]

FLIGHT _v._ LEMAN
IN THE QUEEN’S BENCH, JUNE 9, 1843.
_Reported in 4 Queen’s Bench Reports, 883._

Case. The second count of the declaration alleged that the defendant
heretofore, to wit 1st January, 1838, and on divers &c. between that
day and 22d November, 1838, contriving and maliciously intending to
injure, harass and damnify plaintiff, and to put him to great
vexation, unlawfully and maliciously did advise, procure, instigate
and stir up John Thomas to commence and prosecute an action of
trespass on the case in the court &c. (Queen’s Bench) against the now
plaintiff; that by and through such advice, procurement, instigation
and stirring-up, John Thomas did in fact afterwards, to wit 4th
January, 1838, commence and prosecute the last-mentioned action. The
present declaration then set out three counts of a declaration in case
at the suit of John Thomas against the defendant, averment of a trial
at nisi prius at Dorchester, on 18th July, 1838, and that the
defendant was then and there acquitted of the premises mentioned to be
charged against him by John Thomas. And thereupon afterwards, to wit
22d November, 1838, it was considered, in and by the said court &c.,
amongst other things, that the said John Thomas be in mercy for his
false claim against the now plaintiff defendant in the said
last-mentioned action as aforesaid. Whereby the now plaintiff was not
only put to great trouble and vexation, but was also obliged to pay,
and did in fact pay, a large &c., to wit £800, in and about the
defence of the said action.

The defendant pleaded, in effect, that the advice given by him was
given in the character of an attorney.

Replication _de injuria_.

Special demurrer. Joinder.[407]

LORD DENMAN, C. J. The case of Pechell _v._ Watson, 8 M. & W. 691,
proceeded on the principle that to maintain an action already
commenced was unlawful. That is not here charged; and therefore the
count ought to show the ingredients which make the instigation to a
suit actionable. The plaintiff has not done this; for, beyond all
doubt, the absence of reasonable or probable cause is one such
ingredient, in the absence of which it does not appear that the
plaintiff has been unlawfully disturbed.

PATTESON, J. I think this declaration is bad, for the reason already
given. The case is analogous to that of a complaint of malicious
prosecution or arrest; and here, as there, the want of reasonable or
probable cause ought to be alleged.

WILLIAMS, J. The averments in this declaration might be sustained by
proof that the defendant, not being an attorney, had held a
conversation with Thomas, and had said, “If your story is correct, you
might sue Flight.” No action could be maintained on that, unless it
further appeared that the now defendant knew that there was no right
to sue the now plaintiff.

COLERIDGE, J. It is not asserted here that the suit maintained was
without reasonable or probable cause: there are only general words,
imputing an instigation and a stirring-up. There should be added to
these, in strict analogy with actions for malicious prosecution or
arrest, as my Brother Patteson has pointed out, an averment of want of
reasonable or probable cause: and without such averment this
declaration shows no right of action.

_Judgment for defendant._[408]

GRAINGER _v._ HILL
IN THE COMMON PLEAS, JANUARY 20, 1838.
_Reported in 4 Bingham, New Cases, 212._

TINDAL, C. J.[409] This is a special action on the case, in which the plaintiff declares that he was the master and owner of a vessel which, in September, 1836, he mortgaged to the defendant for the sum of £80, with a covenant for repayment in September, 1837, and under a stipulation that, in the mean time, the plaintiff should retain the command of the vessel, and prosecute voyages therein for his own profit; that the defendants, in order to compel the plaintiff through duress to give up the register of the vessel, without which he could not go to sea before the money lent on mortgage became due, threatened to arrest him for the same unless he immediately paid the amount; that, upon the plaintiff refusing to pay it, the defendants, knowing he could not provide bail, arrested him under a _capias_, indorsed to levy £95, 17s. 6d., and kept him imprisoned, until, by duress, he was compelled to give up the register, which the defendants then unlawfully detained; by means whereof the plaintiff lost four voyages from London to Caen. There is also a count in trover for the register. The defendants pleaded the general issue; and, after a verdict for the plaintiff, the case comes before us on a double ground, under an application for a nonsuit, and in arrest of judgment.

The second ground urged for a nonsuit is, that there was no proof of the suit commenced by the defendants having been terminated. But the answer to this, and to the objection urged in arrest of judgment, namely, the omission to allege want of reasonable and probable cause for the defendants’ proceeding, is the same,—that this is an action for abusing the process of the law, by applying it to extort property from the plaintiff, and not an action for a malicious arrest or malicious prosecution, in order to support which action the termination of the previous proceeding must be proved, and the absence of reasonable and probable cause be alleged as well as proved. In the case of a malicious arrest, the sheriff at least is instructed to pursue the exigency of the writ; here the directions given, to compel the plaintiff to yield up the register, were no part of the duty enjoined by the writ. If the course pursued by the defendants is such that there is no precedent of a similar transaction, the plaintiff’s remedy is by an action on the case, applicable to such new and special circumstances; and his complaint being that the process of the law has been abused, to effect an object not within the scope of the process, it is immaterial whether the suit which that process commenced has been determined or not, or whether or not it was founded on reasonable and probable cause.[410]

BOND _v._ CHAPIN
SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER, 1844.
_Reported in 8 Metcalf, 31._

HUBBARD, J.[411] In the present suit, which is an action on the case
against the defendant for prosecuting a suit in the name of Thomas
Bond against the plaintiff, the plaintiff avers, in his declaration,
(which accompanies the exceptions) that the defendant, without
authority from said Thomas, and having no reasonable ground for
believing that anything was due from the plaintiff to him, attached
the plaintiff’s property, and prosecuted said suit against him, from
November term, 1840, to November term, 1841, when he became nonsuit;
and evidence was offered tending to prove these allegations. The
instructions to the jury were, that “the plaintiff must prove the
former action to have been commenced and prosecuted maliciously, that
is to say, with some improper motive, or without due care to ascertain
his rights, as well as without authority, and without probable cause.”
The error complained of may have arisen from not distinguishing,
during the trial, between an action on the case for malicious
prosecution, and an action on the case for prosecuting a suit in the
name of a third person, without authority, by reason of which the
defendant sustains injury.

In a suit for malicious prosecution, the gist of the action is malice;
but there must also exist the want of probable cause. And without the
proof of both facts, the action cannot be maintained, though the
existence of malice may often be inferred from the want of probable
cause. But in an action on the case for damages for prosecuting a suit
against the plaintiff without authority, in the name of a third
person, the gist of the action is not a want of probable cause,—for
there may be a good cause of action,—but for the improper liberty of
using the name of another person in prosecuting a suit, by which the
defendant in the action is injured. Nor is the proof of malice
essential to the maintenance of such action. If the party supposes he
has authority to commence a suit, when in fact he has none, and the
nominal plaintiff does not adopt it, the action fails for want of such
authority. In such case, though the party supposed he had authority,
and acted upon that supposition, without malice, still if the
defendant suffers injury by reason of the prosecution of the
unauthorized suit against him, he may maintain an action for the
actual damages sustained by him, in the loss of time, and for money
paid to procure the discontinuance of the suit, but nothing more.
Where, however, in addition to a want of authority, the suit commenced
was altogether groundless, and was prosecuted with malicious
motives—which may be inferred from there existing no right of action,
as well as proved in other ways—then, in addition to the actual loss
of time and money, the party may recover damages for the injury
inflicted on his feelings and reputation.

In this case, the learned judge having instructed the jury that a want
of probable cause and malice must concur with the want of authority to
commence the suit in the name of a third person, to enable the
plaintiff to maintain the action, we think there was error in the
instruction, and that though the damages might be enhanced by showing
malice and a want of probable cause, yet that the proof of them is not
essential to the maintenance of the action.

_New trial granted._[412]