Muldoon v. Rickey

Mr. Justice Gobdon

delivered the opinion of the court,

This is an action on the case, brought by Alexander Rickey, the plaintiff below, against John Muldoon, the defendant, for the recovery of dainages resulting from the malicious institution and prosecution, by Muldoon, of certain actions of ejectment, fully set out and described in the plaintiff’s narr.,'and which were finally disposed of by non-suits. An attempt is made in the declaration to charge special damage, but as there was no interference with either the person or property of the defendant, it does not appear that he suffered damage of any kind except such as may be regarded as necessarily incident to all actions of this character. The action of ejectment témporarily clouds the title to the property in controversy, and so may for the time prevent a sale of or mortgage upon it. But a damage of this kind is not more direct than that resulting from the expenses, loss of time, and often loss of credit, arising from the ordinary forms of legal controversy. All are troublesome, expensive and often ruinous, and if for such damage the action of case could be maintained, there would be no end of litigation, for the conclusion of one suit would be but the beginning of another. It has, therefore, been wisely determined that for the prosecution of a civil suit, however unfounded, where there has been no interference with either the person or property of the defendant, no action will lie. In Potts v. Imlay, 1 South'd 330, Chief Justice Kirkpatrick alleged that the books for four hundred years back had been searched to find an instance where an action on the case for the malicious prosecution of a civil suit, like the one then trying, had been successfully maintained, and that it was conceded by the counsel for the plaintiff that no such case had been found. lie also in this connection cites with approval the case of Parker v. Langley, Gil. Ca. 161, wherein it was said : “ An action on the case has not yet succeeded, but only where the plaintiff in the first suit made the course of the court, requiring special bail, a pretense for detaining another in prison, and where the malice was so specially charged that it appeared that the end of the arrest was not the expectation of benefit to himself by a recovery, but a design of imprisoning the other.” And in the ease of Woodmansie v. Logan, Penn. 67, the same learned judge expresses a doubt whet,hej- actions for malicious prosecution in civil cases will lie at all.

Our own cases, whilst they do not carry the doctrine stated quite as far as those cited, do, nevertheless, confine actions of this kind to very narrow limits. Thus, it was held in Kramer v. Stock, 10 Watts 115, that to sustain an action on the case for malicious prosecution, it was necessary that the party should have committed an illegal act from .which positive or implied damage ensued, but that to bring an action, though there was no good ground for it, was not such an illegal act. On the other hand, where one abuses legal process, as by maliciously holding one to bail, or wantonly levies an execution for a larger sum than is due, or after the payment of the debt, an action will lie against him, “ for these are illegal acts, and damage is thereby sustained.”

Again, Mr. Justice Shabswooii, in the case of Mayer v. Walter, 14 P. F. S. 283, has without qualification declared, that a mere suit, however malicious or unfounded, cannot he made the ground of an action for damages. “ If,” says the learned justice, “ the person be not arrested, or his property seized, it is unimportant how futile and unfounded the action may be, as the plaintiff, in consideration of law, is punished by the payment of costs.”

Then again, we have the case of Eberly v. Rupp, 9 Nor. 259, the very latest expression of this court upon the subject in hand, and a casé much stronger in its facts than the one under consideration, for there the action was for the recovery of damages resulting from the service of a writ of estrepement. But it was held that the action could not be maintained, inasmuch as the writ, being purely preventive, neither arrested the person of the defendant nor seized his goods. It will also appear, upon an examination of the opinion in that case, that the point now under discussion is there met and disposed of.

In opposition to this array of authorities the counsel for the defendant in error has produced nothing that can have weight with this court. We have examined his citations of Pennsylvania cases, but find none of them in point. They are all founded upon illegal arrests of the persons of the plaintiffs, or the unlawful seizure of their goods; they ai‘e, therefore, not at all like the case under discussion, in which damages are sought to be recovered which arise only from the failure to sucessfully prosecute a suit in a court of common law. It is true, Muldoon’s ejectments were almost without the pretence of foundation, nevertheless he found a respectable lawyer to issue the Avrits for him, and so it happens continually, suits are brought, and defences are made to suits, Avhich are found in the end to be utterly abortive, but, in all such cases, the winning party has his costs, and these are legally supposed to be his sufficient compensation, and his adversary’s sufficient punishment. The old rule of amercement for the false claim or defence of a party plaintiff or defendant has long fallen into disuse, and to revive it in the shape of an action on the case, Avould, to say the least of it, result in no good.

The judgment of the court below is noAV reversed, and a new venire ordered.