15 Gratt. 381 | Va. | 1859
It seems to me that the plaintiff in error has failed to show good ground for reversing the judgment, in the refusal of the County court to continue the. cause on his motion.
It is not to be denied that the fact, which the plaintiff in error, through his ’counsel, stated he expected to prove by the witness in court, if an opportunity was afforded him to refer to certain books to which he could not then have access, was one which might have a very material bearing on the case. Proof that the defendant in error, at, or a short time before the date of his leaving the county of Warren, had received a large sum of money, might, in the absence of proof that he had honestly paid it to his creditors, or other explanation, obviously go far towards establishing that the plaintiff in error had proper grounds for suing out his attachment. It appears, however, from the certificate of the judge, that there was no proof that the witness had been informed what he was to be examined about, or that he had been requested to examine the books; that, on its being demanded of the counsel of the plaintiff in error.what they expected to prove by the books in respect to the amount of the money aforesaid and the date of its payment, they replied that they were not able to tell the exact day nor the exact amount; and that the counsel for the defendant in error thereupon expressed their willingness to admit that their client received a large estimate a few days before he left the county; which the counsel for the plaintiff in error stated they were unwilling to receive in place of the fact stated by the entry itself.
It does not appear that the plaintiff in error was present. It does not appear that he had informed his counsel of the date and amount of the payment in question; or that he indeed knew himself what the books would disclose in respect to that matter. It is not stated that the witness had been expected to be
Under such circumstances, I cannot undertake to say that the County court has not properly exercised its discretion. The plaintiff in error was plainly remiss in not notifying the witness what he expected to prove by him, so that he might refer to the books if necessary ; and when we take into consideration the further fact that the plaintiff in error had already been indulged with two continuances of the cause, the fail-conclusion is that if he has lost the benefit of any important fact on the trial of his case, such loss is due, not to any injustice or harshness in the ruling of the court, but to his own culpable negligence.
It seems to me further, that the County court did not err in overruling the motion of the plaintiff in error to remove the case to the Circuit court of Warren county.
It must be conceded that the words of the law under which the motion was made seem to be very plain, and to leave but little room for construction. It simply declares that when any suit shall have remained pending in a County or Corporation court more than a year without being determined, such court, on the motion of any party to such suit or his representative (without notice), shall order it to be removed to the Circuit court having jurisdiction over such county or corporation. Code, ch. 174, § 1, p. 657. The pendency of the suit for more than a year without being determined, would, giving to the words of the section their full ordinary meaning, seem to be all that is required to make it imperative upon the court to remove it. Yet it would be absurd to suppose that such could have been the real intention of the legislature. It is manifest that in some instances a rigid enforce
It is obvious, from the very nature of the subject, that the courts must have some control as to the time at which, in the course and order of the proceedings in a cause, they will entertain such motions. The law embraces as well all the causes in chancery as all the cases at law which may have been depending for more than a year in the County courts. Was it the design of the legislature to give to a party the right, after the argument in a chancery cause has commenced, arbitrarily, to stop the argument and remove his case to the Circuit court? Is a plaintiff, in an injunction cause, who has made an unsuccessful motion for a continuance, to be allowed, by such a step, to stay the action of the court, and avoid a dissolution of his injunction? Or, .to take the case before us, has a party to a suit at law, who has made a motion to continue, which has been heard and overruled, a peremptory right to thwart and reverse the decision of the court and defeat his adversary of a trial by removing the case-to the Circuit court? Each of these questions inust, I'.think, be answered in the negative.
A reference to the provisions of the 1st and 2d sec
Upon such a reference in the present case, without instituting any further enquiry into the objects of the motion, the County court must have seen that the inevitable effect of granting it would be, not to further but to defeat the purposes of the law, and to allow the plaintiff in error to baffle and set at nought the action of the court in a matter upon which he had just before invoked its judgment, and visit his adversary with the very evil for which it was the design of the law to afford to both parties an efficient remedy. I think the motion was properly overruled.
The question next to be considered is, whether the County court erred in overruling the motion for a new-trial. And in considering this question, we have to enquire, first, what it was incumbent on the defendant in error to prove; and secondly, whether he has proved it. The elements of the action are malice and the want of probable cause. In the celebrated case of Johnstone v. Sutton, 1 T. R. 493, 545, the gpSetJmh ground of the action was declared to be that^hmprq-' ceedings complained of were had without a;prb)jable
In the case of Manns v. Dupont & al. 3 Wash. C. C. R. 31, probable cause is said to be “ a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offence with which he is charged.” In Hare & Wallace’s notes to this case, 1 Amer. Lead. Cas. 213, the annotators select this as one of the best definitions of the term that has been given. Modifying the definition so as to adapt it to such a case as the one before us, we may, I think, properly define justifiable probable cause in cases of the kind to be, a belief, by the attaching creditor, in the existence of the facts essential to the prosecution of his attachment, founded upon such circumstances as, supposing him to be a man of ordinary caution, prudence and judgment, were sufficient to induce such belief.
It is true, that in the case of Mowry v. Miller, 3 Leigh 561, Judge Tucker, in delivering the opinion of the court, said, that as no man can maintain an action for a malicious prosecution, where there was probable cause, it was obvious that those words should be made to refer to the state of fact as it respects the person prosecuted, and not to the degree of knowledge of that fact in the party prosecuting. It will be perceived, on a reference to the case, that the action there was against the defendant for having procured a third person to institute a malicious prosecution for felony
The law, in departing from the ordinary rules of pleading and proof, and imposing upon an innocent man, wronged by a criminal prosecution, the burden of negativing probable cause as the foundation of the prosecution, does not proceed upon the idea that he is in fault in having become an object of suspicion, but upon considerations of public policy, requiring to some extent a sacrifice of private rights. Crime would often go unpunished for the want of some one to set on foot its prosecution, if the prosecutor was in all cases to be held bound to make good the charge; and it is thought to be better that innocent men should sometimes have to submit without redress to the hardship and injustice of being falsely charged with crime, than that the members of the community should be deterred from the exercise of a proper diligence and activity in bringing offenders to justice, by the fear of exposing themselves to suits by persons prosecuted upon appearances of guilt which turn out to be fallacious, and deceptive. No considerations of the public good, however, .can require that the partial denial of redress to innocent men falsely charged with crime, on the one hand, or the protection to those who honestly engage, upon reasonable grounds, in the prosecution of supposed offenders, on the other, should be extended to the case of an innocent man visited with the evils of a criminal prosecution instituted against him by one having at. the time no belief in his guilt, and ignorant of any circumstance calculated to produce such belief. Accordingly, the cases are, generally, found holding that probable cause consists in the concurrence of belief of guilt with the existence of facts and circumstance, sufficiently strong to warrant such belief; or, in other words, that probable cause is, substantially,
Applying these principles to the facts of the case, it is difficult to conceive how the jury could well have rendered any other verdict than the one they gave.
The leading facts of the case are, that Davy had contracted with the Manassas gap rail road company to build the abutments and piers of a bridge across the south branch of the Shenandoah, abutting, on one side, on the lands of Spengler: that he had lived in Warren county about eighteen months before the suing out of the attachment, and that he had been at work on the bridge from February 1853 to the 26th of December 1853, say ten months; during which time he boarded with Spengler, the plaintiff in error: that he employed a large number of hands, and in the months of November and December had forty-two hands at work on the bridge: that he had received from the company, a few days before the 26th of December, a large estimate on account of work on the bridge, the exact amount of which was not known, and that on that day he paid out to his hands who were present, about two thousand dollars, leaving something still due to some of them, of whom he asked at the time whether the amounts severally paid to them would do; that he paid nothing to Spengler, or Richards, or Massie (who also took out attachments) at that time, neither of them being present: that on the same day he went to Winchester on his riding mare, carrying with him most probably no other property or money than enough money to pay his expenses, stating to his manager (the witness), about the time of leaving, that he was going to Winchester
It was further proved, that up to the time of the suing out of the attachment the credit of Davy was good, and that he was regarded as a man of integrity.
It was also proved by the manager of Davy, that
It was also proved by one of Spengler’s witnesses, that he lived at Spengler’s house at the time of the suing out of the attachment, and for some time before; that he had frequently heard Davy complain that he was not making any thing on the work, and wished he was away, and he seemed to be out of humor with the place.
No witness gives evidence of any other fact or any other declaration by Davy than what is disclosed in the foregoing statement, tending in any degree to show a purpose on his part to remove his property. It was all left on the premises of Spengler; and there is an entire absence of proof going to show that Davy had made any attempt to carry it away, or to sell it or assign it. The fair inference from the facts is, that the estimate he received was fairly distributed out amongst his hands, according to their claims and wants 5 and that he contemplated the faithful prosecution and completion of the important work on which he was employed, was to be presumed from the fact that, after the slight interruption to its progress occasioned by the holidays and the fall of the snow, his manager had
That it was not an unusual thing for Davy to absent himself from the work on visits to Washington, is directly inferrible from the statement of one of the witnesses, that his usual mode of traveling to Alexandria and Washington was by the rail road, which was completed to a point within six miles of the bridge; and when it is considered that Davy boarded with Spengler, and that the latter could not well be ignorant of the fact that his wife resided in Washington, it is difficult to conceive why, unless he was too ready to indulge in suspicion, he should not, on a view of the facts before him, have been satisfied with the very reasonable manner in which the absence of Davy was accounted for by his manager. I can see no ground on which Spengler could have reasonably founded a belief that Davy had removed or was about to remove his effects so as to endanger the collection of his debt. In the absence of such ground, the jury had a right to infer malice; which in such cases is to be understood in its legal sense, and not in its popular signification of anger, malevolence or vindictiveness. The improper motive or want of proper motive inferrible from a wrongful act based upon no reasonable ground, constitutes of itself all the malice deemed essential in law to the maintenance of the action; and the most charitable construction of Spengler’s motives in suing put the attachment that can be given, is, that he acted upon slight circumstances of suspicion, inducing an unreasonable solicitude, on his part, for the safety of his debt, and a corresponding want of consideration as to the serious and irreparable wrong which his harsh proceeding was calculated to inflict upon the credit and other interests of his debtor.
The proposition advanced in the course of the argu
If, upon the rehearing of the case, irregularly obtained upon his petition, it was competent for him to have gone into the question whether the attachment had been founded on reasonable grounds (about which I express no opinion), it appears no such issue was tried or tendered. On the trial the plaintiff in error, if he could have relied on' any estoppel, failed to do so, and there seems to have been a free, fair and full trial on the merits.
As to the objection that Davy was entitled to recover no damage growing out of the sale of his property, as he failed to stay the sale by giving bond, it seems to me sufficient to say that, supposing it competent for him to have pursued such a course, and that it was within his power to give such bond, he was not bound to give it. His action proceeds on the ground that the suing out and prosecution of the attachment were wrongful and malicious. The plaintiff in the attachment was acting at his own peril, and cannot be heard to complain that the defendant did not hinder him, in the sale which he was seeking to have, by complying with the onerous condition of giving bond and security to pay the judgment. Besides, the loss occasioned by the sale of his property was but an item in Davy’s claim on account of damages, and the whole question of damage was fully before the jury.
I can see no ground for interfering with the verdict of the jury on the alleged ground of excessiveness.
The declaration in this case is irregular, in that it charges that the attachment was sued out wrongfully and without good cause, instead of maliciously and without probable cause; and doubts have been suggested since the argument of the cause, whether this irregularity is cured by the verdict. In the case of Ellis v. Thilman, 3 Call 3 (which was a case for a malicious prosecution), the allegation was that the prosecution was malicious and without any just cause. In the case of Young v. Gregorio, Id. 446 (case for the illegal suing out &c. of an attachment), it was alleged that the proceedings were had maliciously and without any legal or justifiable cause. And in Kirtley v. Deck and others, 2 Munf. 10 (case for a conspiracy in preferring &c. a malicious prosecution for a felony), the allegation was that the defendants falsely and maliciously conspired &c. to prefer a false and malicious prosecution, &c.; but there was no averment that the prosecution was without probable cause. In each of these cases, it was held that the declaration was radically defective, and was not cured by the verdict. In these cases, it was said that the words without probable cause, or some equipollent expression, were essential to make a good declaration, and it was held that the words without any just cause, in the first mentioned case, and without any legal or justifiable cause, in the second, could not be received as equivalents for the words which the law required. It is to be observed, however, of all of these cases,
It is true, that broad and comprehensive as is the language of the provision, this court has felt called upon, on several occasions, to set some limits to its operation, and to declare that there are some defects in declarations which are beyond its cure. Still it will be seen, on a reference to the cases alluded to, that none of them can be used as precedents for excluding this case from the benefit of said provision. The first of them (in order), Mason v. Farmers Bank at Petersburg, 12 Leigh 84, was the case of a suit by the plaintiff against the president and directors of a branch bank, in which the declaration complained of them as “the president, directors and company of the office of discount and deposit of the Farmers Bank at Peters-burg.” This court held, that no judgment could be rendered, as the declaration was against parties who could not be made liable to any action. There was no such corporation in existence. The declaration plainly showed that the cause of action was against the “president, directors and company of the Farmers Bank of Virginia.” In the second case, that of Ross v. Milne and wife, 12 Leigh 204, the declaration plainly showed that the plaintiffs had no cause of action, and that the right demanded was in a third person. And in the third case, that of Boyle’s adm’r v. Overby, 11 Gratt. 202, which was a suit against an administrator
In neither o.ne of these cases was there any room for the inference of facts, supplementary to and consistent with those alleged by the plaintiff, that could make out a good cause of action. In each case, the allegations of the plaintiff showed affirmatively that he had no right to recover.
The distinction between such cases and the one in hand, is too marked to require comment. Proof that the attachment was prosecuted maliciously and without probable cause, would be entirely consistent with the allegation that it was prosecuted wrongfully and without good cause; and it might well be that the very same testimony relied on to establish the latter allegation, might furnish sufficient proof of the former also.
I am free to confess that I have not been able to bring my mind to a conclusion entirely satisfactory as to the precise scope of the provision under consideration. It seems to me, however, that if the present case were to be excepted out of its operation, it would be a very difficult task to say at what point such exceptions should stop. The case" is plainly within the letter of the statute; and I can see no sufficient reason for supposing that it is not within its meaning ; whilst I am entirely satisfied that the case has been fully tried and justly decided on its merits. The supposed defect does not appear to have been, in any manner, brought to the notice of the County court; it is not assigned as one of the causes of error in the petition for a supersedeas to the Circuit court; nor in the petition to this court; nor (if noticed at all) in the argument here, was it insisted on as a ground for arresting the judgment.
Under these circumstances, it seems to me that the
I see no error in the judgment, and am for affirming it.
The other judges concurred in the opinion of Daniel, J.
Judgment affirmed.