
    WALTER C. PEACOCK v. JOHN G. ROTHWELL.
    PETITION KOR TÍE1I BARING.
    Argued November 16, 1907.
    Decided November 20, 1907.
    TTartwet/e, O.J., WiudeR, J., axd Circuit Judge T/TNdsay IN PEACE OR BaDDOu, J.
    
      Pi.BADiNfi — unliquidated demand.
    
    An action on a covenant in a lease for rent, water rates ancl taxes is an action for an unliquidated demand under Sec. 1712 ft. L.
   OPINION OF TH13 COURT BY

HART WE Ob, C.J.

At the argument which was allowed upon the question whether the. original action was for a liquidated or for an un-liquidated demand the plaintiff referred to the definition of a liquidated demand as one which is agreed upon or definitely settled by stipulation between the parties or by operation of law. The rent being fixed by the lease and the water rates and taxes by law he claims that nothing was uncertain or unliqui-dated in the demand. The defendant contends that if the demand originally was definite!)' fixed by the covenant in the lease as to the rent and by operation of law as to the water rates and taxes the payments of $152.50 and $200, leaving the balance of $554, sued for, left the, demand unliquidated since the action was not brought for an account stated. TJe also points out that the cause of action in the present case was not trespass by using a void attachment.

This action ivas tried and has been treated not as an action of trespass on the case by a malicious prosecution nor trespass by an attachment illegally obtained but as trespass on the case in obtaining a lawful attachment maliciously and without probable cause.

(J. If. Ashford for plaintiff.

U. 21. Robertson for defendant.

Wo regarded the original action as brought for an unliqui-dated demand in which an attachment is obtainable oil an averment that the defendant debtor is disposing of his property without averring intent thereby. to defraud his creditors so that in this view there was no doubt of the existence of probable cause.

A plaintiffs demand is not liquidated by reason solely of his declaring upon a written instrument. /The statute, Sec. 171.1 E. L., relating to liquidated demands, provides a form of petition for process “In all suits for the recovery of money upon evidences of indebtedness, or vouchers certain or computable by the court, that is to say: upon promissory notes, bills of exchange, drafts, orders, bonds and other instruments parol or specialty;” Sec. 1712, relating to unliquidated demands, provides for a form of petition in all civil cases involving unliquidated demands to recover money or damages “pursuant to the words, or the spirit or intent of any law heretofore, now, or hereafter to be passed, or of any instrument in writing signed by any party, or of any verbal understanding, contract or agreement, or in consequence of any injury direct or consequential to the party plaintiff, or to his property, real or personal, or to his character, or his feelings.”

The demand on which the action Avas brought, not being for the recovery of money on any of the instruments of the kind mentioned in Sec. 1711, it is not a liquidated demand nothin .the meaning of that section, and consequently it must be an unliquidated demand Avithin Sec. 1712.

The petition for rehearing is denied.  