Bump v. Betts, 19 Wend. 421

Bump v. Betts

19 Wend. 421 | N.Y. Sup. Ct. | 1838

By the Court,

Nelson, Cb. J.

This action lies against any person who maliciously and without probable cause prosecutes another, whereby the party prosecuted sustains an injury either in person, property, or reputation. 1 Selw. 806. Saund. Pl. & Ev. 651. 2 Chitty’s PL 248, n. r. 12 Mod. 208. 1 Salk. 12. 1 T. R. .493, 551.

As a general rule, the plaintiff must aver in his declara*422tion, and prove on the trial the determination of the former suit in his favor, Saund. Pl. & Ev. 858, 2 Chitty’s Pl. 245, n. e., though the omission of the averment would be cured after verdict. 1 Saund. 228, b. n. 1. See also 3 Camp. 61, n. 1. The reason for this proof is obvious, for otherwise he might recover in this action, and still be convicted, or have judgment against him in the former suit. Doug. 215. But it does not apply where the malicious prosecution complained of arises out of proceedings on attachment in the absence of the party defendant, in which no opportunity is afforded him to defend the suit. A judgment against him under such circumstances, cannot be deemed conclusive evidence of probable cause, or want of malice, as in cases of personal service of process. The rule was first laid down in reference to these cases, and when thus confined, is a sound one, but altogether inapplicable in respect to alleged malicious suits under this new statute remedy given to a plaintiff. The reason of the rule ceasing, the rule itself should give way, and must, or this mode of redress for a wrong more likely to be committed in ex parte proceedings than in litigated cases, must be denied. It is obvious the damage to the party in the former instance, will usually be much more serious than in the latter: in the one case there will be a recovery against him for such amount as his adversary, on an ex parte hearing thinks proper to demand; whilst in the other he is subjected only to the costs of a defence.

New trial granted; costs to abide the event-