Decision of
on Demurrer.
This is аn action to recover damages for injury done to the property of рlaintiff, the complaint alleging that the defendants commenced an action on the 1st June, 1881, against the plaintiff to recover the sum of $1358.77 for goods sold and delivеred, and that in their complaint the defendants falsely swore that this plaintiff was seсreting his property and disposing thereof or colluding so to do, and thereby procured an attachment on all plaintiff’s property; that said attachment destroyed his business and caused another creditor to file a petition against him in bаnkruptcy; that plaintiff was at that time able to pay his debts, was not secreting his prоperty, or disposing of it dishonestly or improperly or fraudulently, or colluding so to dо, which was well known to defendants; and that defendants by their acts intended to injure the рlaintiff in his property and business.
At the argument it was further suggеsted that the assignees, who succeed to the property of the bankrupt, are the proper parties to bring this action.
I am of the opinion that the quеstion of the validity of the attachment, or whether the facts which were brought to thе notice of the Judge who allowed the attachment were sufficient to warrant it, could not be tried in the former action. The Code, Sections 1117 and 1120, authorizes the issuing of an attachment by a Judge upon certain sworn allegations in the comрlaint, and the bond given is to reimburse the defendant for all costs, charges and damages in case the plaintiff shall fail to sustain his action. The sufficiency of those facts is left to the Judge from whom the allowance of the attachment is asked. Thе jury could not possibly, while trying the issue of whether the then defendant (Kerr) was indebted to the then plaintiffs (Hyman Bros.), try also the distinct question of damage suffered by the defendant in сonsequence of the attachment. The bond is conditioned on the failure of the plaintiffs to sustain their action, but if the action was not sustained, the jury could not thеn proceed to assess the damages on the bond in the same action.
This present action is not trespass or other action for damages to prоperty. If it were, the assignees in bankruptcy should bring it.
After a careful reading of the сomplaint, I find that damages are claimed on account of the allegеd falseness of the affidavit upon which the attachment was issued; and because the plaintiff, Kerr, was not fraudulently or dishonestly disposing of his goods, which the defendants well knew, which is, in еffect, an action claiming damages for a malicious prosecution. The gravamen
I incline to the opinion that the suspension of the civil suit, by the operation of the petition tо declare the plaintiff a bankrupt, is a sufficient termination of the suit. The then plaintiffs recover a dividend from the assignees on their claim. Its receipt and the discharge of the bankrupt is a complete bar to the action, and it is virtually at an end.
But the averment of want of probable cause and malice are еssential, and I do not think that the averment that the defendants “intended to injure plaintiff,” takes the place of an averment of “malice,” or the allegation, thаt “they falsely swore that he was dishonestly disposing of his goods,” is equivalent to an averment that there was no probable cause for the prosecution of the complaint.
Demurrer sustained.