This is not an action for malicious prosecution. It does not аllege either malice or want of probable cause in the first action brought by the defendant against the plaintiff, or want of probable cause in the second action, and that аction apparently was pending when the writ in the ease at bar was sued out. The plaintiff in this case impliedly admits that the defendant had a good cause of action against him, on which he brought his actions.
The plaintiff attempts to make this an actiоn for the abuse of legal process. His complaint is, that, as in the first action brought by the defendant against him sufficient credits to sаtisfy the claim were attached in the hands of the trustee, an intеntional neglect to enter the writ, the malicious bringing of another suit for the same cause of action, and attaching therein the same credits originally attached and additional credits earned after the service of the first writ, constitute an abuse of legal process for which an action will lie. The crеdits attached were wages due for the personal labor of the defendant, who is the plaintiff in the case at bar. Such wages are exempt from attachment to the amount of twеnty dollars, unless the demand be for necessaries furnished to the dеbtor or his family, and then to the amount of ten dollars. Pub. Sts. c. 183, § 30. It is not allegеd that the attachments were made “ for the purpose of unlawfully hindering or delaying the payment of such wages to- the person to whom they belong; ” and it is unnecessary to consider whethеr an action can be maintained for a violation of section 32 of c. 183 of the Pub. Sts. The allegation that in the first action “ there were sufficient funds attached in the hands of the trustee to satisfy the claim ” on which the action was brought, and that in the second аction the same credits and others were attached, must be taken to mean that the defendant in those actions had credits lawfully attachable in the hands of the trustee. If this is not the meaning, still the credits beyond the exemption were lawfully attachеd, and it appears that the credits in the first action were $83, аnd in the second $131.
We have been shown no case in which it has bеen held that the intentional non-entry or discontinuance of аn action in which property has been attached, and thе bringing of a new suit for
For a failure to enter the first writ, the defendant has his costs, and this is the only remedy given. Pub. Sts. c. 155, § 23; c. 154, § 11. Harding v. Downs,
As the plaintiff’s declaration does not set forth any known cause of action, even imperfectly, the cause of demurrer could not well be more specifically assigned.
Judgment affirmed.