
    Tomlinson and Sperry v. Henry Warner.
    •■Case will lie for falsely and maliciously suing out a writ of attachment against the plaintiffs’ effects to their injury, though it be admitted they were indebted to the defendant.
    
      Jl creditor’s false affidavit, that his resident debtor absconds is not probable cause for issuing an attachment against his effects.
    Malicious Prosecution. Prom Licking. The plaintiffs declared, that they were residents of the town of Newark, and possessed of a large amount of personal property, deposited in a ware house to be forwarded to New York for a market; and that the defendant, well knowing the premises, and that the plaintiffs had not absconded, but •contriving and maliciously intending wrongfully to injure them, made • oath before a justice of the peace, that they had absconded to the injury of their creditors, as he verily believed, and thereupon sued out of the .court of Common Pleas, a writ of attachment, and caused the •said property to be seized by the sheriff, and held for a long time, whereby the same was injured, the plaintiffs deprived of the opportunity of forwarding their goods to a market, and greatly injured. Plea, mot guilty.
    Upon trial to the jury, the counsel for the plaintiffs admitted that the plaintiffs were indebted to the defendant at the time of his ^affidavit, as sworn to in it; whereupon the court directed a non-suit, with leave to move to open it, and for a new trial, which is now made.
    Geo. B. Smythe, and H. H. Hunter, for plaintiffs,
    insisted, that -the admission of the indebtedness of the plaintiffs, which might have constituted probable cause for an ordinary suit, did not destroy this action, the gravamen of which is, that the defendant maliciously and -withoutprobable cause, procured to be issued by his own false affidavit, an unusual and oppressive hind of process, not adapted to the legal liabilities of the parties, to effect a malicious purpose. He cited Swan v. Saddlemire, 8 Wend. 680; 1 Ch. Pl. 133, 4; Sutton v. Johnstone, 1 T. R. 503; Rogers v. Brewster, 5 Johns. 126 ; Bul. N. P. 11, 12, 13 ; Goslin v. Wilcock, 2 Wils. 376 ; Smith v. Cattel, 5 Wils. 376 ; Wicks v. Fentham, 4 D. & E. 247 ; 1 Str. 690 ; 4 Serg. & R. 17; Reynolds v. Kennedy, 1 Wils. 233 ; Pangburn v. Bull, 1 Wend. 351; Chapman v. Piskerville, 2 Wils. 145.
    T. Ewing, H. Stanberry, and J. R. Stanberry, for the defendant,
    insisted, that to sustain this suit, the action by the defendant must have been not only malicious, but without prohable cause, and that the existence of the debt was cause of action ; the defendant only mistook his remedy. 10 Johns. 106; 1 Wend. 345; 1 Salk 14; 1 B. & Pul. 205 ; 1 Ch. Pl. 136; Wheat. Sel. 809.
   By the Court,

Wood, Judge.

The only question presented in this motion is, do the facts set forth in the declaration constitute a legal cause of action, provided the plaintiffs were indebted to the defendant, when he sued out the writ of attachment ?

In Connecticut, there is a statute which provides, that where a. plaintiff shall “ willingly and wittingly,” wrong any defendant by prosecuting any action against him with intent wrongfully to trouble and vex him, such plaintiff shall pay treble damages for the first offence, be liable to a fine for the second, and for the third, may be proceeded against as a common barrator. Judge Swift thinks the act founded in the clearest principles of justice. Swift Dig. 493. At com.mon law, it seems well settled, that no action will lie for a malicious prosecution of a civil suit, without cause, where there is no arrest. 1 Salk. 14. The costs allowed in all other cases, are supposed to be a sufficient compensation for the injury, however ^malicious. The-rule itself may perhaps be admitted, but the reason on which it is said to be founded, can not be so readily admitted, for at common law, no-costs were allowed. If the plaintiff failed, he was amerced for his false clamor, and if he succeeded, the defendant was at the mercy of the king. But at common law, whenever there was an arrest, holding to bail, or imprisonment, where no debt was due, or for a greater sum than was due, with a malicious intention to injure, the action lay for a. malicious arrest. 1 Saund. 228. The action for a malicious prosecution, which, technically, only applies to cases of malicious prosecution of criminal complaints, lies as well where there is not, as where? there is an arrest; and the grounds of the action are the malice of the-defendant, want of probable cause, and injury to the plaintiff’s person by imprisonment, his reputation by scandal, or to his property by expense. 1 Swift D. 491. Having no direct adjudication on the question before us, we may look to the analogies of the law. The counsel for the defendant insist that because the plaintiffs’indebtedness to the defendant in the former suit is admitted, there was probable cause for suing out the writ of attachment. This does not seem to us to follow. To constitute probable cause for suing out a writ of attachment, the law requires an affidavit of indebtedness, and also that the debtor has absconded, or is non-resident. The absence of either is absence of probable cause for the writ, and the false affirmation of either fact, knowingly, as a means of procuring the writ, shows express malice, whilst the taking of property without cause, is a sufficient injury to sustain the action.

In the Supreme Court of New York, it has been decided, that case would lie against both plaintiff and defendant, for fraudulently setting up the judgment as unsatisfied, when in fact paid, and causing an execution and sale of land once held by it as a lien, but which had been afterwards conveyed by the defendant to a third person. The court in that case say, “ if it appear that the unlawful acts of the defendant occasioned trouble, inconvenience, or expense to the plaintiff, this action lies.” The general rule is, that for every injury the law gives redress ; and it would be a reproach to the administration of justice, if one, by perjury, could take from another the control of his property, under form of law, and the law afford no remedy. Nice technicalities) are sometimes applied to get rid of a hard ease ; but when, under form of law, opportunity is sought to gratify malice, to the injury of another, courts will not be astute to avoid, but rather seek ground to sustain an action. We have no facts in this case, ^before us, but the statement in the declaration, and the admission of indebtedness ; but these show a sufficient prima facia cause of action, and cause for opening up the nonsuit.

New trial granted.  