49 A. 697 | R.I. | 1901
The declaration in this case is demurrable, in that it fails to allege the travel and result of the action complained of as malicious in the court where such action was begun. It is true that it appears from the voluminous pleadings in the case that there was a trial of the action complained of as malicious, in the lower court, and that it resulted in favor of the present defendant who was the plaintiff in that suit. But under all the precedents, and under the well-settled law in such cases, the travel of the original action and the result thereof should have been set out in the declaration in this case. See Newell on Malicious Pros. 396-404.
In Spring v. Besore, 12 B. Mon. 555, the court say: "The correct doctrine on the subject is, in our opinion, that the decree or judgment in favor of the plaintiff, although it be afterwards reversed, is, in cases where the parties have appeared and proof has been heard on both sides, conclusive evidence of probable cause unless other matters be relied upon to impeach the judgment or decree, and to show that it was obtained by *189 fraud; and in that case it is indispensable that such matter should be alleged in the plaintiff's declaration; for unless it be done, as the other facts which have to be stated establish the existence of probable cause, the declaration is suicidal. The plaintiff's declaration will itself always furnish evidence of probable cause when it states, as it must do, the proceedings that have taken place in the suit alleged to be malicious, and shows that a judgment or decree has been rendered against the plaintiff. To counteract the effect of the judgment or decree and the legal deduction of probable cause, it is incumbent upon him to make it appear in his declaration that such judgment or decree was unfairly obtained, and was the result of acts of malice, fraud, and oppression on the part of the defendant, designed and having the effect to deprive him of the opportunity and necessary means to have defeated the suit and obtained a judgment in his favor."
Under the decision of this court in Giusti v. Del Papa,
So to draw a declaration as to necessitate or even permit the piling up of technical pleadings until they reach a demurrer to a surrejoinder, as was done in this case, before reaching an issue, when the same issue might readily have been raised by a simple declaration and a plea of the general issue thereto, ought not to be permitted.
As the defendant's demurrer to the plaintiff's surrejoinder reaches back in effect through all the pleadings and attaches upon the first substantial defect therein (Railton v. Taylor,
