30 Wis. 511 | Wis. | 1872
We quite agree with counsel for the defendants that there was no evidence of malice or willful misconduct on the part of the defendants, in procuring the writ of ne exeat, or in causing it to be executed and the plaintiff arrested, for which smart-money or punitory or exemplary damages ought to have been given. The defendants made the application upon the advice of the counsel, and the same was submitted to the judge of a court of superior and general jurisdiction, by whom the writ was allowed and the arrest ordered. To be sure, counsel were in error and so was the judge, but there is not the slightest evidence that there was anything more than mere misapprehension or error on the part of the defendants, the same as on the part of their counsel, and of the judge of the court. It was error on the part of the defendants, induced by the advice of counsel and the action of the judge, in allowing the writ.
For all that appears, they were prosecuting the action against the plaintiff, and in which the arrest was made, in entire good faith, advised by counsel, and fully believing that the steps taken in it were legal and proper. The advice of counsel alone ought, under such circumstances, to be sufficient to repel all presumptions of malice. The effort to save the arrest or prevent the discharge, made, as it was, through counsel and by their advice, it is presumed, was no more than any suitor might reasonably be expected to do in like case. The order of arrest, or allowance of the writ was ex parte, and hence, the vacation of it might be, and counsel wished to be heard. And as to the expressions of disappointment at, or disapproval of, the discharge, the time has long since gone by, if it ever was, when these, or even something more or stronger, can be regarded as evidence of malice in the defeated party to a law-suit. This poor satisfaction, all that the disappointed suitor has, he is expected to take without stint or limitation, secundem artem, as a kind of sacred privilege and necessary relief in the hour of his distress, which no ruthless hand shall invade and no court or jury trespass upon or take away. In tender consideration for the weaknesses of the flesh, and the vexations and torments of an unfortunate litigation, the unlucky suitor is not to be followed with false imprisonment and malicious prosecutions, and mulcted in damages for his mere expressions of disappointment at the result. “After all, however, clients are entitled to be captious -'mpatient and unreasonable.” Mr. WARREN, in Adventures (fan Attorney in Search of Practice, ch. xi.
Upon the facts of this case, therefore, as they appear to us, there was no ground whatever for giving the plaintiff anything more than actual or compensatory damages, growing out of the unlawful arrest. The special damages laid down in the complaint, for counsel fee and expenses in procuring his discharge from arrest, seems to have been proved by the plaintiff. Beyond the special damage, so laid and proven, we do not see that any actual damage was shown. It is objected that such special damage cannot be recovered, because it was not shown that the counsel fee and expenses had actually been paid by the plaintiff. In Pritchet v. Boevey, 1 C. & M., 775, it was held that only the costs paid could be recovered, and not those agreed to be paid, because the declaration was so framed as to cover only the former, and not the latter. In this case, however, the allegation is that the respondent was specially damaged by being compelled to employ counsel to procure his release from imprisonment, at an expense of $60. It is not specifically averred that the counsel fee and expenses had been paid, or that the pleader has not restricted himself to proof of payment in fact, as in Pritchet v. Boevey. That case clearly redognizes the right of action for expenses incurred, though not paid; the liability of the plaintiff to pay them being set out as the ground of damage, and we are very clear that this view of the law was correct. It seems in this case that the plaintiff was allowed $10 costs of the motion upon ordering his discharge. Whether these costs should be deducted from the $60 or not, we will not undertake to say. It does not appear that the $10 have ever been paid, and if they have it may be that they ought not to be deducted, though the case seems to have been one where it would have been eminently proper for the judge, according to
The point that upon the evidence no arrest or imprisonment was shown, must, we think, be overruled. There was undoubtedly a technical arrest and imprisonment, although barely that and nothing more.
The judgment is erroneous and must be reversed. It was error for the court to submit to the jury the question of exemplary damages which they must have found. There was no evidence to which such instructions were applicable, and that 'part of the charge was excepted to by the defendants. It was also error for the court not to grant the motion for a new trial, because the damages found by the jury were excessive. They were clearly so and the motion should have prevailed.
By the Court. — Judgment reversed, and a venire de novo awarded.
