Savage v. Brewer , 33 Mass. 453 ( 1835 )

Wilde J.

delivered the opinion of the Court.

As to the first question reserved in this case, it would be extremely difficult, I think, for the plaintiffs to maintain the affirmative, upon any legal principles ; but we have not found it necessary to consider that question, being of opinion that upon the second ground this action may be well maintained.

It seems to be a well established principle, that if one causes another to be arrested, and held to bail, for a debt not due, or for more than is due, and this is done knowingly, an action of the case lies for this abuse of legal process ; for the plaintiff knowing that there is no probable cause, and having no expectation to recover the sum demanded, is presumed to have acted maliciously. The want of probable cause is decisive on this point. And whether there be no debt due, or a sum much less than the sum demanded, and this be known to the party causing the arrest, the principle is the same.

The case of Austin v. Debnam, 3 Barn. & Cressw. 143, is a strong case in support of this principle. There, there had been mutual dealings between the parties, and there were items on each side known to be due. The defendant caused the plaintiff to be arrested for the amount on one side of the account, without deducting what was due on the other, and the prosecution and arrest were held to be malicious, although it was urged by the counsel for the defendant, that he did not know that the plaintiff would avail himself of a set-off. And the case of Daw v. Swaine, Sid. 424, was decided on the same principle. And on a similar principle, the suing out an execution for more than was due and levying the same on the plaintiff’s property, was held to be malicious, in Sommer v. Wilt, 4 Serg. & R. 19.

In the case of Sinclair v. Eldred, 4 Taunt. 7, Mansfield C. J. remarked, with respect to malicious arrests, that there never was a period when this species of action ought more to be encouraged, for there was much abuse made of the power of arrest. I trust this is not the case with us at the present day, although I remember not á few gross abuses of legal process, which in various forms have been subjected to judicial investigation ; and we must take care that the evil should not be suffered to increase by any laxity in the administration of justice.

What then is the law in respect to this case ? As to malicious arrests it appears to be well settled, and has indeed never been doubted since the case of Daw v. Swaine, which was the first case in which this species of action was sustained. The. same principle was adopted in Sommer v. Wilt, in respect to the malicious abuse of legal process in levying an execution on property for an amount greatly exceeding the sum actually due. And it seems to us, that the same reason and principle applies to the taking of personal property, under our process of attachment, where the amount of property attached is manifestly excessive. And so the attachment was in the present case.

No reason is given, why an attachment was made to an amount so much exceeding the debt, or why in the writ the sum of $1500 is demanded, when, if any thing was due, it was only the sum of $124. If it was an innocent mistake, that should have been shown ; or if the defendant had another doubtful claim, which he waived at the time of the settlement of the action, that also should have been shown. It was competent for him to rebut the presumption of malice, by showing a probable cause or an innocent mistake ; but there is no such proof. On the contrary the want of probable cause plainly appears." It is no answer to" say, that the same property must have been attached if the real debt only had been demanded ; for the master of the plaintiffs’ vessel might have paid that without orders, or, if not, the plaintiffs might have remitted the amount without being put to the trouble and expense of a journey into Maine to procure a release of their property. Upon the evidence therefore as reported, we are of opinion, that the action is well maintained, and that the plaintiffs are entitled to judgment.

Judgment on the verdict.