This appears to be an action of the first impression. The books do not furnish a precedent in its favour. It is obvious, however, from the statement of the plaintiff’s case, in the declaration, the truth of which is admitted by the demurrer, that he has sustained damage by the act of the defendant, which he alleges was done fraudulently, and with intent to injure him. It is the pride of the common law, that wherever it recognises or creates a private right, it also gives a remedy for the wilful violation of it. The facts stated in the declaration being admitted by the demurrer, we are to assume that the plaintiff had acquired a legal lien on the property, by means of the judgment in favour of Kane, and the assignment of it to himself; and that the injury to the property was done with a full knowledge of the plaintiff’s rights. If, then, there is any remedy for him, it is in this form of action only that he can obtain it. Trespass will not lie; for the plaintiff was not in possession. The principle which governed the decision in the case of Smith v. Tonstall, (Carth. 3. 13 Vin. Abr. 553.) is somewhat analogous. It was there ruled that an action will lie against the defendant for confessing a judgment by fraud, in order to prevent the plaintiff’s having the benefit of a judgment he had obtained against him. It is a sound principle, that where the fraudulent misconduct of a party occasions an injury to the private rights of another, he shall be responsible in damages for the same; and such is the case presented by the pleadings in this cause. The plaintiff must, accordingly, have judgment upon the demurrer.
Judgment for the plaintiff»