RITTENHOUSE v8. SCHAMP.

ON CERTIORARI.

KIRKPATRICK, C. J.-The justice of this judgment, after a careful examination of all the papers handed up, seems to me, to be exceedingly doubtful. The plaintiff's demand filed, consists partly of a book account, and partly of other matters. This Schamp appears to have been a constable, and in his state of demand, he charges the defendant below with several sums of money, paid on executions against him, to sundry persons, as per certain receipts referred to. But he does not set forth that these sums were paid at the request of the said defendant; and when we come to examine the receipts, which also are handed up, they appear to be receipts from Rittenhouse, by the hand of Schamp only, and not receipts from Schamp, on account of Rittenhouse. Upon the whole, as the state of demand is not strictly legal, in that it does not state these payments to have been made at the request of the defendant, and as I have great doubt as to the real justice of the claim, I am inclined to reverse the judgment.

[*] ROSSELL, J. and PENNINGTON, J.-Concurred.

Judgment reversed.

BRUSH vs. BURT.

ON CERTIORARI.

Action lics for a malicious and false prosecution in a civil suit. THE action below, was an action on the case, brought by Burt against Brush. The substance of the state of demand delivered the justice was, that Burt lived in Mendham, in the county of Morris, but had sold off his property with intention to move to the western country, and had actually commenced his journey, with his wife and family, when he was taken on his way by a constable, under a warrant from a justice of the peace, at the suit of Brush, and brought to Morris-Town, in the county of Morris; that Brush instead of pursuing this action before the justice, never appeared to it, but took out a capias from the common pleas, and had Burt arrested and held to bail; that Burt was acquitted (as he terms it) from the action in the common pleas; that in consequence of this arrest, Burt was detained a week from pursuing his journey, and put to great expence in maintaining his family and taking care of his team on the

road, and that his business suffered greatly by this loss of time; that the warrant and capias were taken out by Brush through malice, with intention to vex the said Burt, and that the suits were utterly without ground, as the plaintiff and defendant never had any dealing together of any kind whatever, and that known to Brush.

To this state of demand, Brush pleaded not guilty; on which there was a trial and verdict, and judgment for the plaintiff for $39 50.

It was now contended, on the part of Brush, the plaintiff in certiorari, that an action could not be sustained on the state of demand.

[*] KIRKPATRICK, C. J.-This was an action on the case for a malicious prosecution.

The law upon this subject, as it is laid down by Hargrave in his note on Co. Litt. 161, in which he states the principle, I think, more clearly and in fewer words than any other author I have seen, is this: "No man is liable to an action for merely suing in a civil form, however false the suit may be in foundation; nor is he otherwise punishable therefor except by payment of costs: But if the suit be malicious as well as false, he is punishable in an action at law by the party injured. Yet this is only in cases where real damages can be proved, or where from the grossness of the charge, the law supposes damages to be inevitable."

In the case before us, the plaintiff below has set forth in his state of demand, all the circumstances whereof he complains; prosecution and the loss which he has sustained on that account; he has also expressly, and I think, sufficiently, though perhaps not technically, charged the defendant below, with having instituted that prosecution maliciously to vex and injure him, well knowing that it was false in its foundation. As to the truth of this statement both with respect to the damages and the malice, the jury were the proper judges. They have found for the plaintiff, and there appears to me to be no reason to say they have done wrong, or that the court has erred. In my judgment, therefore, let the judgment be affirmed.

ROSSELL, J. Of the same opinion.

PENNINGTON, J.-The ground of objection taken by Mr. Brush, the defendant below, who is the plaintiff in this court, is, that an action cannot be maintained on this state of demand; that no action can be maintained for maliciously prosecuting a civil suit in any case whatever; that the costs that the plaintiff is condemned to pay in such case is the only remedy, for which he cites Bul. Nis. Prius, 11. If this was so, it would be a great reproach to our law; but the [*] law

is otherwise. The original remedy for false, malicious, vexatious civil prosecutions, was an amercement for the false clamour. This in time became merely nominal; then costs were given by statute, and for a time, costs were thought sufficient; but for nearly two hundred years the remedy pursu ed by the plaintiff below, has been recognised by "great authority. Hob. 205, 266. Styles 379. 12 Mod. 208. 1 Black. Rep. 427. Bul. 12, 13. case of Waterer vs. Freeman, adjudged in the reign of James Sir Henry Hobart, in the I. says, "If a man sue me in a proper court, yet if his suit be utterly without ground of truth, and that certainly known to himself, I may have an action of the case against him for the undue vexation and damage that he putteth me unto by his ill practice." Hob. 267. Note 4. But it is proper to observe, that to maintain this See also Harg. Coke Lit. 161. action, it is not sufficient that the charge made against the person injured by it, is false and groundless; but the action must be commenced maliciously, and with an intent to injure and oppress the defendant; and the circumstances of malice and vexation must be set out in the declaration; and also the special damage sustained. It appears to me, that a good cause of action is set out in this state of demand, and that the judgment ought to be affirmed.

Judgment affirmed.

CASES ADJUDGED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW-JERSEY.

NOVEMBER TERM, 1812.

CLARK vs. ZANE.

ON CERTIORARI.

THE state of demand filed with the justice, was for a bill of expence for the lying in of a woman, (of the same name with the plaintiff below, but not stated to be his daughter, or in any way connected with him,) with a child charged on the defendant below: The defendant did not appear at the trial; no evidence was examined before the justice; but the justice admitted in evidence, two examinations of the woman who had borne the child. It was objected that the state of demand was insufficient; and also, that the depositions admitted in evidence were not legal testimony-that in fact it was a judgment without evidence.

The state of

BY THE COURT.-The objections are fatal. demand does not set out a legal cause of action, and the evidence given was illegal; and even if legal, insuflicient, -as no evidence was given of the material facts necessary to have been proved. Judgment Reversed.

[*] OLIVER vs. MUNDAY.

ON CERTIORARI,

Reputed insolvency of the maker of a promissory note, is no excuse for want of notice to the indorser,

THE action below was brought by Munday as indorsee, against Oliver as an indorser of a promissory note. It was admitted, that the endorsee had not demanded the money of the maker of the note, nor given any notice to the indorser, of the non payment. But it was also admitted, that

the maker of the note was on the limits of the jail of the county of Essex at the time the note became due, and was reputed to be insolvent.

BY THE COURT.-Notwithstanding the reputed insolvency of the maker of the note, yet a demand and refusal, and notice thereof, was necessary.

Scudder, for plaintiff.

Judgment Reversed.(a)

JOHNSONS v8. ANDERSON,

ON CERTIORARI.

No action lies on a promise to pay damages caused by defendant's not paying a debt when due.

THE action below was founded on the following state of demand, in substance. That the defendants below, John and Andrew Johnson, were indebted to the plaintiff below, Anderson, in the sum of $500; that Anderson was indebted to two other persons in $100 each, and the money would become due on the first day of May 1810: and that in consequence of his being in danger of being prosecuted for this sum, the defendants promised that they would pay the debt due from them to the plaintiff, to enable him to discharge by the said first day of May the said debts he owed-and that in case they should fail to pay by the time, and the plaintiff should be sued for the same, and put to costs, that they would pay the costs and expenses which he should be so put to; that the defendants failed to pay the money at the time, whereupon, [*] the plaintiff was sued in two actions, and put to $80 costs, and demands the said $80 costs, which he had been so put to, of the defendants.

There was a trial, verdict and judgment, for the plaintiff below, for $65 13.

I. H. Williamson, for the plaintiff in error, contended, that there was no legal consideration set out in the state of demand, on which to ground the alledged promise; that the state of demand did not contain a legal cause of action.

BY THE COURT.-There is no legal consideration on which the promise can attach. oppression would take a wide range. The creditor, in most If this was law, usury and cases, suffers an inconvenience in case of the want of

punc

(a) S. P. Saund, Pl, and Ev. 292. Esp. Dig. 36. Doug. 497. 4 Mass, R. 341.