Griffin v. Farwell

20 Vt. 151 | Vt. | 1848

The opinion of the court was delivered by

Hall, J.

This action is perhaps of new impression; but that, of itself, is no objection to sustaining it. The action on the case is peculiarly adapted to the redress of injuries arising from any new relations, in which parties may be placed by the varying changes in society and business, whether arising from statutory provisions, or otherwise. It is held to lie, in general, where one man sustains an injury by the misconduct of another, for which the law has provided no other adequate remedy. Ashley v. White, Ld. Raym. 38. Chapman v. Pickersgill, 2 Wils. 146. Pasley v.Freeman, 3 T. R. 63. Willes 577. Langridge v. Levy, 2 Mees. & Welsb. 519.

By the Revised Statutes, chap. 15, sec. 33, it is provided, that if a party causes a process to be served, and shall discontinue his suit, or be nonsuited, the court, to which the process is made returnable, shall give judgment for the defendant to recover reasonable costs. By the terms of this statute it would seem to have reference to the withdrawal of a suit, after it has been entered in court. But, by an equitable construction, a defendant, where the process has not been returned, has, in the supreme and county courts, been allowed, on complaint and filing a copy, to have judgment for his costs. Perhaps such may have been the practice in justice courts, to a limited extent; and upon the validity of such a judgment no opinion is intended to be expressed. It is obvious, however, as has been well urged by the plaintiff’s counsel, that such a remedy, if it exist in a justice court, is a very imperfect one. A justice court, unlike the county and supreme courts, has no stated term, to which the party may repair with a certainty to find it in session. If a plaintiff notify the justice, that the suit will not be prosecuted, he is not likely to be at the place set for trial at the hour appointed, but may be miles from there and wholly inaccessible to the defendant. When notice of the discontinuance of a suit is given to the defendant before the day of trial, he cannot obtain the costs already incurred, without being at additional expense, for which he may have no security, even were he sure of finding the justice at the time and place of the return of the writ.

In the present case we are to take it, from the declaration, that the defendant did, before the day set for trial, receive legal notice

of a-discontinuance, — such notice, as, under the decision in Mead v. Arms, 2 Vt. 180, he was bound to regard, and under which he could not be expected to incur the additional expense of travelling a hundred miles to the place set for trial, to obtain a taxation of his costs,— with every reasonable apprehension, that, when he arrived there, he would find no court in session to tax them. By the wrongful acts of the defendant in bringing and discontinuing the suit, the plaintiff was injured at least to the extent of the taxable costs he had incurred in preparing his defence ; and for which injury, he having no other adequate remedy, we think he is entitled to one in his action on the case; and we accordingly affirm the judgment of the county court.