73 Me. 376 | Me. | 1882
The plaintiff in his declaration, alleges that the defendant wickedly, maliciously intending and contriving to wrong and injure him, and without probable cause, on the eighth of October, 1877, made and swore to a complaint before David Norton, a trial justice, for the county of Penobscot, against his (plaintiff’s) minor son, Ivory E. Severance, for unlawfully, wilfully and maliciously breaking, injuring and defacing a building or house of his (defendant’s) without his consent; that said Norton issued upon said complaint, a warrant against his said son; that he was arrested, brought before said justice, tried by him, and found guilty upon the false and perjured testimony of the defendant and one Frederick Ray, whom the defendant had
To this the defendant demurred, and there was a joinder in demurrer.
The magistrate had jurisdiction. His judgment is in full force, and neither reversed nor annulled.
This would seem, so far as can be judged from the declaration, to be an action by a father “for the malicious prosecution of a deceased son, the judgment rendered against the son remaining in full force. However groundless, malicious or destitute of probable cause the prosecution may have been, the son, if living, could not, in this state of facts, have maintained an action for the wrong done.
In an action for malicious prosecution, the plaintiff must show the fact of the prosecution and its termination in his favor. Sayles v. Briggs, 4 Met. 421. To sustain such suit, it must be averred and proved that there has been a failure of the proceedings against the plaintiff which constitute the ground of his complaint. Stewart v. Sonneborn, 98 U. S. 187. If the action is commenced while the malicious suit or a prosecution is pending, it cannot be maintained. O’Brien v. Barry, 106 Mass. 303; Hamilburgh v. Shepherd, 119 Mass. 31. In Mellor v. Baddeley, 2 C. & M. 675, it was held that a conviction unreversed, consti
It is alleged that the conviction of the son was procured by the perjured testimony of the defendant, and one Ray, whom he suborned. At common law, the perjury of a witness affords no ground of action. An action upon the case does not lie for perjury of a witness, whereby the plaintiff recovered less damages in trover. Damport v. Simpson, Cro. Eliz. 520. It does not lie by one party to a suit against his opponent for falsely swearing before an auditor, and thereby procuring a judgment. Curtis v. Fairbanks, 16 N. H. 543. Nor, for suborning a witness to swear falsely in another suit, whereby judgment was rendered against the plaintiff. Smith v. Lewis, 3 Johns. 157. In certain cases, this action for perjury is authorized by R. S., c. 82, § 124, but it applies only in civil suits.
Though the conviction of the son was unjust and was procured by fraud and perjury, and through a conspiracy to accomplish such purpose, an action is not maintainable while such conviction remains unreversed. Dunlap v. Glidden, 31 Maine, 435.
It is abundantly manifest that the plaintiff’s son could not have maintained an action for malicious prosecution against the defendant, his conviction remaining unreversed and in full force. The fact of conviction would negative want of probable cause as against the son. This fact is of equal force as against the father. Indeed it is difficult to see upon what ground the father could maintain an action for a wrong done the son when the son could not — the wrong done the son being primary and immediate, while the injury done the father is secondary and consequential.
It will be seen by R. S., c. 142, § 3, that the magistrate had jurisdiction to impose the sentence imposed. But whether he had or not, the defendant is not shown in any way responsible for its imposition.
Judgment for defendant.
