11 Mass. 500 | Mass. | 1814
delivered the opinion of the Court.
The defendant sued out an original writ against the plaintiff, and caused his goods to be attached; and the writ was afterwards abated on a plea of a former suit pending for the same cause of action; and the question is, whether trespass will lie against the defendant for that attachment.
[ *502 ] * We are all satisfied that an action upon the case is the proper and exclusive remedy for an injury of this kind. The case is not stronger for the present plaintiff than if he had, been sued without any cause of action whatever, and that cer tainly known to the party who commenced the suit; and yet it is well settled that trespass will not lie for such an injury. There are many cases on this point, collected in Buller’s Nisi Prius, in the 11th and following pages. In 3 Durnf, & East, 183, Lord Kenyon declares that “ it is incomprehensible to say that a person shall be considered a trespasser, who acts under the process of the court.” This must of course mean a regular process, such as cannot be vacated or avoided by a supersedeas. The same principle is recog
The cases cited for the plaintiff, in which trespass was held to lie against parties acting under legal process, relate to process that was void, or vacated, set aside, or superseded, as illegally, unduly, or irregularly sued out.
If one be arrested on an execution which was illegally issued, and is afterwards set aside on that account, and brings trespass for this arrest, the defendant cannot justify under the execution, because it has not, and never had, any legal * existence; and of course it cannot be produced or [ * 508 ] proved in a court of law.
But in the case of an original writ that is abatable, it depends on the defendant’s plea whether it ever will be abated. If it be afterwards abated, it is by judgment of the court; and the writ, so far from being a mere nullity, becomes a record of the court, and is the foundation of the judgment which they render.
The plaintiff, in the case at bar, could not reply to this plea of justification, that there was no such record of the writ set forth in the plea. This proves that the writ was not avoided, set aside, or vacated.
We know of no principle, on which this replication could be supported, that would not apply equally to the case of every writ that was abated for any other cause; and indeed to every action which should otherwise prove to be erroneous or unfounded.
It makes no difference that, in this case, the present defendant may be supposed to have known of the pendency of the former suit, which was the cause of abating the second. That would be a material circumstance in an action upon the case for a malicious
If one, knowing that he has no cause of action or complaint, cause another to be arrested, the latter may maintain an action upon the case for this injury, although the whole proceedings are perfectly regular and legal in point of form,
Replication adjudged bad.
Albee vs. Ward, 8 Mass. Rep. 79. — Winslow vs. Hathaway, 1 Pick. 211. — Smith vs. Rice, post, 507. — Briggs vs. Wardell, 10 Mass. Rep. 356.
Walkins vs. Baird, 6 Mass. Rep. 506. — Lindsay vs. Larned, 17 Mass. Rep. 190. — Stone vs. Swift, 4 Pick. 389. —Pierce vs. Thomson, 6 Pick. 193.