56 How. Pr. 316 | N.Y. Sup. Ct. | 1878
The demurrer to the complaint should, in my opinion, be overruled. As I view it, this is an action brought for the recovery of damages, resulting from the wrongful and malicious act of the defendants, in wrongfully using the process of the court, and thereby preventing the plaintiff from selling her property. In Closson agt. Staples (42 Vermont, p. 217), Wilson, J., delivering the opinion of the court, says: “ The earlier English cases show very clearly, that before the statutes entitling defendants to costs, they had an action at common law for injuries sustained by reason of suits, which were malicious and without probable cause. It would seem, however, from more recent decisions, that the present English rule, which restricts or limits the right of action for maliciously prosecuting civil suits, without probable cause, stands mainly upon the ground that the costs which the statutes provide that the successful defendant shall recover, are an adequate compensation for the damages he sustains, but under their rule it does not appear that the right of action is restricted to those cases, when the process is by attachment.”
After stating, the mode of commencing suits, under the statutes of Vermont, the learned judge proceeds to say: “The principle of the common law, recognized by the English courts, before the statutes allowing costs to the defendants, and which gave a remedy for injuries sustained by reason of suits which were malicious and without probable cause,, is and ought to be operative still, and we think it affords a remedy in all such cases where the taxation of costs, is not an adequate compensation for the damages sustained ” (P. 219).
The opinion of the supreme court of Vermont, from which I have so freely quoted, ably discusses the points principally relied u}3on in the elaborate brief of the learned counsel for the defendants in this action, and the conclusions reached by the court seem to me to be in accordance with justice and legal principles (See, also, Whipple agt. Fuller, 11 Conn., 581; Bebinger agt. Sweet, 1 Abb. N. C., p. 263).
This case, as is contended by the plaintiff’s counsel is analogous to the case of wrongfully suing out an attachment, against property in a civil action, and in such a case, an action lies (Bump agt. Betts, 19 Wend., 421).
The defendants, by demurring to the complaint, have admitted that the alleged wrongful acts of the defendants were done maliciously, and without probable cause, as well as the allegation that the Us pendens, and the proceedings in regard thereto were ended.
I do not regard the other objections to the complaint as well taken. The demurrer is therefore overruled, with leave to the defendants to answer over within twenty days on payment of costs.
