12 F. 266 | U.S. Cir. Ct. | 1882
The exception taken to the charge of the court in this case is that the jury were told the plaintiff was entitled to recover his actual damages at all events, the question of probable cause being confined solely to the consideration of the demand for punitive damages. This charge was given after mature deliberation and a very careful consideration of the authorities, and upon a review of the subject I am now satisfied it was correct. It' must, I think, be conceded that the element of probable cause applies as well to the actual as the exemplary damages in suits for malicious prosecution of a civil as well as a criminal action. The reason of the rule is well understood, a brief statement of it being that — the law protects and indeed encourages a resort to the process of the courts to redress grievances rather than to any other mode, and if one does so resort without malice and with probable cause he shall not be mulcted1 in
It is a suit upon the facts of the case, as it may be nnder our Code, abolishing the technical forms of action. The first count of the declaration is in tlic ordinary common-law form to recover damages for the prosecution of an action without probable cause, and if that had been the only count, and our statute abolishing forms of action did not render it immaterial, it is possible that the plaintiff would be held to show malice and want of probable cause. But the second count states the simple facts, leaving out all averments of malice and want of probable cause; and such an action may be sustained under our system, if the facts justify a recovery in any form. Tenn. Code, (T. & S.) §§ 2746, 2747, 2896, 2975.
The principle above stated is very familiar, but the defendant contends that the plaintiff had his choice to sue on the bond and to take under it, or to sue at common law outside of it and take what the law gives him and no more, — namely, such damages actual or punitive, or both, as the jury may assess, — if he proves that the prosecution was with malice and without public cause; and that tbe abolition of forms of action has not affected this result, as it is not a question of pleading,' but of right to recover where there was no malice but was probable canse. This is very forcible, and I came very near yielding to it; but on reflection it seemed to me, and does now, that it is only a very plausible fallacy.
I think the defendant in attachment has three remedies: (1) He may sue on the bond and recover according to its condition; (2) he may sue the plaintiff on the facts of the case and recover according to the statute, precisely as if the plaintiff had given a bond; (3) he may sue for malicious prosecution, as at common law, and recover according to the common law, where there has been malice and want of probable cause.
The whole question turns on the proper construction of the statute. It says the condition shall be “that the plaintiff will prosecute the attachment with effect, Or, in case of failure, pay the defendant all costs that may be adjudged against him, and also all such damages as he may sustain by the wrongful suing out of the attachment.” Tenn. Code, §§ 3471, 4289. Subsequent sections provide for the procedure, and among other things it is enacted that under certain circumstances, where there has been a default, the defendant shall not be heard to traverse the grounds of the attachment, but may “commence an action on the attachment bond, and may recover such damages as he has actually sustained for wrongfully suing out the attachment.” Code, § 3530. And the following section provides that “if sued out maliciously, as well as wrongfully, the jury may, on the trial of such action, give vindictive damages.” Tenn. Code, § 3531. The word “maliciously” here means not only that malevolent intention to
Our own decisions have been in some confusion, but a critical examination of them in the light of the changes made in the law of pleading, before adverted to, and of the legislative construction above mentioned, in the codification of the statutes, will, in my judgment, show that the charge to the jury in this case was correct. In a suit upon the bond there can be no reasonable doubt that the measure of damages is as charged in this case. It is settled that the party is not confined to his remedy on the bond. Now, our statutes say in plain terms that all forms of action are abolished, and that “whenever damages are recoverable the plaintiff may claim and recover, if he shows himself entitled thereto, any rate of damages which he might have heretofore recovered in any form of action for the same cause.” Tenn. Code, § 2975. Why should there be one measure of damages in an action on the bond and another in an action on the case, on the same state of facts, when the right is statutory and both actions depend on the same words ? If the plaintiff were driven to the common-law form of action outside the bond, he must both allege and prove malice and want of probable cause; but he is not so driven.
The very obligation of the plaintiff is (and this whether he gives a bond or not, for he is not entitled to the writ on any other condition) that “he will prosecute the attachment with effect,” or “in case of failure” to so prosecute that he will pay, etc., all such damages as the defendant sustains “by the wrongful suing out of the attachment.” Here is the legislative definition of “wrongful,” which means a failure to prosecute with effect, and we are not authorized in any suit for these statutory damages to import from the common law any element of malice or want of probable cause, for the statute does not require it, and its object is to create a right or remedy, and prescribe its limitations and conditions. It is not dealing with a common-law remedy, nor legislating on a common-law subject. If the statute did not fix these damages, the defendant in attachment could obtain only such as the common law would give him; but such is not his unfortunate condition; he obtains his actual damages at all events, if the plaintiff in this extraordinary and harsh remedy fails to establish the frauds he charges injuriously.
Under the influence of the common law the earlier statutes did not receive this liberal construction, but later they did, by the legislature, if not by the courts, as I have endeavored to show. I shall not take space here to review the decisions critically, but I have read them so, and am content to cite them in support of, these views. In Sloan v. McCracken, 7 Lea. 626, the learned judge says the suit is founded on malice and want of probable cause, but the decision was that the plaintiff could not recover because he had not shown a judgment in his favor in the attachment suit. The inference may be that if he had shown that fact he could have recovered, as the writ would have then been shown to have been “wrongfully sued out,” because
In the view I have taken of this case adjudications like Sonneborne v. Stewart, 98 U. S. 187; S. C. 2 Woods, 603; Evans v. Thompson, 12 Heisk. 534; Gayoso Gas Co. v. Williamson, 9 Heisk. 314; Raulston v. Jackson, 1 Sneed, 126; Pharis v. Lambert, Id. 227; Kendrick v. Cypert, 10 Humph. 290; and Hall v. Hawkins, 5 Humph. 355, which have been so much pressed by counsel for defendants, have no application to a case like this.
I am of opinion that there was no error in the charge, and a new trial is refused. Motion overruled.