Bump v. Betts & Betts, 23 Wend. 85

Bump v. Betts & Betts

23 Wend. 85 | N.Y. Sup. Ct. | 1840

Cowen, J.

By the Court, This was an action for maliciously suing out an attachment against the plaintiff on a paid judgment. The cause [ *86 ] Was properly left to thejury, *under the circumstances in proof, upon the question of probable cause. The judgment had been paid, and a receipt in full given by the defendant P. J. Betts, son and agent of the other defendant, Teter Betts; and I cannot help thinking with the jury, that the defendants perfectly well knew and recollected that fact, when the attachment was taken out. The process of the law was perverted to the purposes of injuring if not ruining the plaintiff’s credit, working an enormous and disproportionate sacrifice of his property, and followed by a course of insulting and tantalizing language and conduct when he returned from abroad *86and applied to the defendants for redress. Conscious as they appear, then at least to have been, that they had done wrong, instead of being forward to afford indemnity, they refused to pay the plaintiff’s actual damage, and even to allow him the cash value of his goods which they had purchased at auction. When the plaintiff finally thought it his duty to threaten a resort to legal redress, he is answered, “ You will be lawed till you are sick of it. You may squirt your damnedest.” There was something to apprehend from such a reply ; for the defendants had the command of great wealth, and the plaintiff was a poor man who bad just commenced life. He had bought a small farm of Peter Betts, had paid or secured a portion, and proceeded to improve it. He left, when he went away, crops and other means, a portion of which he directed should be applied to continue bis payments. He still owed for the land undoubtedly, and that was urged as a circumstance that the defendants must have proceeded on the judgment by a mere mistake. An endorsement was also shown to have been made on the land contract, which purported that the money mentioned in the receipt upon the judgment had been applied in payment for the land. The jury doubtless -thought this endorsement the result of a mere after thought; and that the defendants, at the time, feeling themselves secured by the land for the purchase money, were persuaded that the more advantageous fraud would be to use the paid judgment as the foundation of their attachment.

The damages are undoubtedly large, $750. But it is *impos- [ *87 ] sible for us to pronounce that they are so disproportionate as, under the circumstances of the ease, to indicate corruption or unreasonable passion in the jury. That the jury should have been somewhat transported with indignation by the view which we think they had a right to take of this matter, is highly probable ; a consequence which the defendants could hardly escape, were we to send the cause down and order it retried. It must still be tried by men, and by civilized men.

A new trial is denied.