Hathaway v. Allen

Opinion oí the Court. It is important to give this action a name, in' order to apply it to the principles of law. In an averment that defendant well knew the fact of payment of the note, he is called an agent, and it is attempted to call this action, one against defendant for misconduct as an agent; but^ the declaration does not shew any authority, given by plaintiff' to defendant, or any appointment of defendant as agent, either general or special, or any subject matter of the agency; this is not an action in favor of principal against an agent; it is not an action for maliciously holding to bail. Such an action ■ lies, only when the process is directed to hold to bail, for a sum evidently and unreasonably larger than the plaintiff’s reaj. claim. This is an action for maliciously prosecuting a civil suit, without probable cause, and the facts of imprisonment, jiolding to bail, &c. are alledged by way of aggravation of damages.

It is not necessary to decide, in this case,

1. Whether an action will lie, in this State, for maliciously issuing an attachment and holding to bail, without probable cause ; or

2. Whether an action will lie, for maliciously prosecuting a civil suit, without probable cause ; for,

In this case, the commencement of the declaration states a tact, which directly contradicts all the averments of want of probable cause ; it states that the action in favor of Hull, was founded on a note, and that the want of probable cause, consisted in the payment of the note, the existence of a debt pri-*158ma facie is admitted, and the fact of payment, Hull or his as-signee had a right to contest; the declaration shows not only a palpable, but a sufficient cause of action prima facie. The recovery of a judgment, in the suit complained of, is still more conclusive, and all the facts alledged, shewing want of probable cause, were matters of defence, before that judgment was rendered.

The injunction from chancery could not do away the effect of the judgment, as conclusive evidence of probable cause; it is presumed no court would ever render a judgment without even probable cause. Divest the declaration of verbiage, and the great and unusual number of opprobrious epithets, heaped upon every act of defendant, and which cannot alter the nature of the acts themselves, and it complains of nothing more than may be stated against every party who has brought an action and failed to recover, or having recovered at law, is enjoined by a court of chancery. The declaration is unprecedented, and cannot be supported by either practice or principle.

Judgment — That declaration is insufficient.