81 N.Y.S. 1072 | N.Y. App. Div. | 1903
The sole question is whether, upon demurrer to a complaint for malicious prosecution, the allegation that defendant, before a magis
The word “ just ” is derived from the Latin “Justus,” which is from the Latin “jus,” which means a right, and, more technically, a legal right, a law. Thus “jus dicere ” was to pronounce the judgment, to give the legal decision, as by the praator. Our word “ just ” is defined in the Century Dictionary as “ right in law or ethics; ” in Stormonth’s English Dictionary as “ conformable to laws; ” in the Imperial Dictionary as “ conformed to rules or principles of justice.” “ Just ” is defined in the Standard Dictionary as “ conforming to the requirements of right or of positive law ; ” in Anderson’s Law Dictionary as “ Probable ; reasonable; as, just cause to make an arrest, to suspect one of crime.” Rapalje and Lawrence’s Law Dictionary states that the terms “just cause” and “reasonable cause” are synonymous. Kinney’s Law Dictionary & Glossary defines “ just” as “ fair; ” “ adequate; ” “ reasonable; ” “ probable,” and “justa causa,” in the civil law, as “a just cause;” “a lawful ground.” Black’s Law Dictionary defines “just” as “right; in accordance with law and justice.” In Jones v. Fruin (26 Neb. 76) the court held that the allegation that the attachment was “ wrongfully and maliciously sued out, and no just ground existed for issuing the same,” as equivalent to allegations of want of probable cause. In Martin v. Gage (9 N. Y. 398) the court held that the phrase “ just debts ” means “ those debts which shall turn out to be just, according to the determination of courts of -law and equity.”
The pleader charges that the defendant prosecuted him without just cause or provocation. Does he not fairly mean that the defend
I think that the averment sufficiently points out the nature of the claim, and that evidence of no probable cause is admissible under it. The two decisions mainly relied upon by the learned counsel for the appellant, namely, Young v. Gregorie (3 Call [Va.], 446) and Van de Wiele v. Callanan (7 Daly, 386), need not be followed. The first is nice to a degree in the lines of antique pleading, when the courts indulged in subtleties, for the divided decision turned upon the fact that “ justifiable cause ” could mean something else than “ probable cause.” The second decision is obiter upon this point. It holds that as just or proper cause does not necessarily express the same thing as probable cause, it could not be substituted for it. I think that the rule expounded is too stringent in the light of the more recent decisions on the construction of pleadings upon demurrer, ut supra. The learned Special Term (Dickey, J., presiding) was right in overruling the demurrer, and the judgment should be affirmed.
Bartlett, Woodward, Hirsohberg and Hooker, JJ., concurred.
Interlocutory judgment affirmed, with costs.