63 Neb. 391 | Neb. | 1901
This is an action to recover damages for malicious prosecution. The facts, to the extent that a recital of them is deemed requisite for the purpose of this opinion, are disclosed, practically without dispute, in the record, as follows : The plaintiff in error had in its possession certain notes executed to it by the defendant in error and another, and from whi ch it was contended by the defendant in .error that he had, for a valuable consideration, been released, by an agreement between the parties, and upon which, otherwise, an action ivas barred by the statute of limitations. Well knowing that upon either or both grounds no right of action existed upon the instruments, the plaintiff, after having, through its agents, demanded and been refused payment, maliciously and for the purpose of injuring and annoying the defendant, at successive times prosecuted suits upon them before justices of the peace in out-of-the-way places in counties far distant from the county of the defendant’s residence, which suits were, however, abandoned
The plaintiff contends that an action for damages for malicious' prosecution will not lie when the proceeding complained of is a civil suit in which there has been no restraint of the person or seizure of the property of defendant. In support of this contention he cites a paragraph from the opinion of the late Chief Justice Maxwell, in Rice v. Day, 34 Nebr., 100, as follows: “At common law, prior to the statute of Marlbridge (52 Hen. III.), which gave costs to a defendant where the action against him failed, a defendant who had defeated the party bringing the action might bring an action against him for maJieious prosecution. The fact that an action was not well foandod — had been brought against a party and failed— was sufficient to justify a suit for malicious prosecution, although neither his person nor property had been taken into the custody of the court. After the statute of Marl-bridge above referred to took effect, the general rule has been that in a civil action, to justify, an action for malicious prosecution, there must have been an arrest of the person or seizure of his property.” We do not think, however, that this paragraph was intended to commit the court, or even the writer of the opinion, to the general rule therein stated. It does not do so explicitly, and the matter under consideration was an action for the malicious seizure of property upon a writ of attachment, for the decision of which, or, at any rate, for the reaching of the conclusion arrived at, an invocation of the rule was not requisite.
We think, however, that a new trial must be granted, because of an inadvertent error committed by the learned judge who presided at the trial in giving an instruction. The jury were told that one of the elements of damages for which the plaintiff below would be entitled to be compensated, in case he should receive a verdict at their hands, would be for the injury to his reputation and credit, if any was shown. It can not be presumed that by this phrase the
It is recommended that the judgment of the district court be reversed, and a new trial granted.
Reversed and remanded.