77 Vt. 371 | Vt. | 1905
This is case for a malicious suit. The new count, which is the only one in question, alleges that the defendant, not having any reasonable or probable cause of action, brought trover against the plaintiff, returnable before a justice, and caused >him to be arrested and imprisoned on the writ; that the plaintiff appeared on the return day, ready for trial, but that the defendant told him he need pay no more attention to the case, and that the defendant would go to the
It is objected that said count is double because it alleges a malicious suit and a fraudulent judgment, and therefore sets up two- causes of action. But, as the plaintiff contends, the fraudulency of that judgment is not declared upon as a cause of action, for it was necessary to- set up the judgment, and to show that it was vacated and the suit finally ended in favor of the plaintiff. And being set up, — not considering whether a voluntary discontinuance is sufficient evidence of want of probable cause and malice to justify a finding of both, which some o-f the cases hold and others deny; and not considering what the plaintiff now claims, that as the hearing before the justice was ex parte, the judgment has no binding force, on which he was not bound to rely in pleading, — it was
This brings the case within the rule that no1 matters, however multifarious^ make a pleading double if, when taken together, they constitute but one proposition or entire point.
But the count is bad in substance, for what is want of probable cause is a question of law, and therefore it is not enough to allege, as here, merely want of “reasonable or probable cause of action,” for that is only matter of law; but the facts should have been set out, that the court may see whether there is want of probable cause, and there is no’ allegation that amounts to' setting out such facts. Driggs v. Burton, 44 Vt. 124, 146. In Closson v. Staples, 42 Vt. at page 225, it is said to be clear that an averment of want of probable cause is not sufficient without alleging facts showing such want. It is like pleading fraud, where it is not sufficient merely to1 allege that a thing is fraudulent, however strongly you may characterize it as such, for that is but the pleader’s opinion, which the law will not regard, but requires that what is relied upon to constitute the fraud shall be set out, that the court may judge of the matter.
But it is claimed that the judgment conclusively proves probable cause, because it is said that although it is alleged that it was procured by fraud, the facts relied upon to show fraud are not set out. But the allegations sufficiently impeach the judgment for bad faith and dishonesty in procuring it, to overcome its effect as proof of probable cause. Burt v. Place, above cited, is much in point on this question.
Affirmed and remanded.