
    Hugh Lindsay versus Samuel Larned.
    No action lies for one whose property has been attached, and who has suffered much damage in consequence of a civil suit which was abated, unless the prosecution of such suit were malicious.
    This was an action on the case, in which the plaintiff declares that the defendant, on the 1st of January, 1819, commenced an action against him in this county, to recover the amount of seven promissory notes ; that in that suit Larned caused four several parcels of timber, the property of Lindsay, to be attached, and in March, 1820, recovered judgment in the suit for the sum of 7853 dollars; that in May, 1819, Larned, well knowing of the suit then pending in this county, commenced another action on the same notes against Lindsay, in the province of East Florida, and there caused him to be arrested, and his property to be attached, and held his property under that attachment for thirty days; when the suit was dismissed, and the attachment dissolved and discharged, on account of the suit so pending in this county.
    The cause was tried on the general issue before Jackson, J., when it appeared that Larned was a merchant, residing in [ * 191 ] Cadiz, in Spain, and had there received of * Lindsay eight promissory notes. In February, 1818, these notes being unpaid, and Henry Larned, brother of the defendant, being about to come to the United States, where Lindsay then resided, the defendant gave to Henry L. a power of attorney to demand and receive all moneys due to him, with power of substitution ; and also delivered him copies of the said eight notes. In September, 1818, Henry L., being in Charleston, South Carolina, and about to return to Spain, left the said copies in the hands of Messrs. King Sy Jones of Charleston, to whom the defendant was then indebted,^ and substituted them as attorneys of the defendant, by force of the power above-mentioned. In March, 1819, Henry L., returning to Charleston, was informed by K. &/■ J., that they had caused the suit, first above-mentioned, to be instituted in this county, and had been advised by their attorney in Boston that one parcel or cargo of timber had been attached here. They also informed him that Lindsay was cutting and collecting timber in East Florida, for the navy of the United States, on a contract with the commissioners of the navy, and wished him to go to East Florida and endeavor to procure payment of the notes. Henry L. went there accordingly, and made an arrangement for this purpose with Lindsay; but it was afterwards defeated, by reason of the bills drawn by him on that occasion not being accepted by the drawee. Henry L. then went again to East Florida, and there commenced the second suit against Lindsay, which is the cause of the present action.
    
      H. Lamed, when he returned the second time from Spain, received from his brother the originals of the said eight notes, endorsed in blank by Samuel L. When about to commence the suit on them in East Florida, he found that, by the laws of that place, the plaintiff in a suit, or his attorney constituted according to the forms of the Spanish law, ought to be present; and the power to him not being in that form, he on that account brought the suit in his own name, as endorsee. King &f Jones furnished [ * 192 ] *him with the funds to carry on the suit, amounting with his expenses to 800 dollars.
    
      
      Samuel L. continued, during this time and long afterwards, to reside in Cadiz, and had no knowledge of the suit in East Florida, until long after its termination ; Henry L. testifying that the suit was brought and carried on by order and under the direction of K. fy J., and as they alone would probably be benefited by it, he did not think it necessary to inform his brother particularly about it. But Samuel L. knew generally that K. &f J. were taking measures to secure the debt, if possible.
    While the first-mentioned suit was pending in the Court of Common Pleas, Samuel L., by leave of the court, struck out the count upon one of the seven notes; so that the judgment obtained here was for the amount of six only of the eight notes. The suit in East Florida was brought to recover the whole of the eight notes.
    Before Henry L. went to East Florida the second time to com menee the suit there, he had been informed by K. Sf J. that the timber attached in Boston had been replevied, and it was considered uncertain what would be the result of the attachments made here. There are two actions of replevin pending in this Court, waiting for the opinion of the Court upon reports of the trial had therein, at the same term with this action; and if the respective plaintiffs prevail in those two suits, it will show that the attachments made in the first-mentioned action of Lamed vs. Lindsay are wholly fruitless.
    There was other evidence in the case, tending to show the value of the articles attached in East Florida, and the damage sustained by Lindsay in consequence of the suit there. But the judge was inclined to the opinion that, on the whole of the facts proved and stated above, the plaintiff could not maintain this action; whereupon the parties agreed that a nonsuit should be entered, subject to the opinion of the Court on the evidence. If the Court should be of opinion that the plaintiff was entitled to recover, the * nonsuit was to be set aside, and the defendant de- [ * 193 ] faulted; the damages in that case to be assessed by assessors to be. appointed by the Court, unless the parties should agree in appointing them. Otherwise the nonsuit was to stand, and judgment to be entered accordingly.
    
      H. H. Fuller, for the plaintiff.
    We contend upon these facts that the defendant is answerable for the conduct of his agent in commencing a groundless suit against the plaintiff in East Florida, attaching his property and arresting his body, in consequence of which the plaintiff suffered great inconvenience, loss and damage. We do not charge malice, and we believe this not necessary to a recovery in this action of the case. The injury was committed by the defendant’s agent, for whose want of skill the principal is answerable, though not for his malice .
    At the common law, when the plaintiff failed in his suit, an amerciament or fine to the king was imposed on him; in lieu of which, by various statutes, costs to the defendant were substituted. These costs are considered as a satisfaction to the defendant for the inconvenience of being held to answer to a groundless suit. And generally, where no malice is shown, they must be held an indemnity. Thus, in the present case, the legal costs allowed in East Florida were a satisfaction for merely bringing an action for a sum of money supposed to be due, and failing in the requisite proof. But they were no satisfaction for the damage which the plaintiff sustained in consequence of the wanton attachment of his timber. He seeks indemnity in the present suit for that damage, and he thinks himself entitled to it.
    The right of attaching property, as security for the judgment a plaintiff may finally recover, is a provision not known to the common law, and is almost peculiar to this state. This is the reason why we look in vain to English authorities for precedents for this action. It may be a useful and wholesome improvement. But it is very liable to be abused, and ought, therefore, to be [ * 194 ] well guarded ; and *the rather, because there is no legal method of relieving goods when so attached, although they may be of ten times the value of what the plaintiff can reasonably hope may be the amount of his judgment; or although he cannot reasonably hope to recover any thing. When the person is arrested, the party is immediately relieved by giving bail; and holding to excessive bail is actionable. It is a sound maxim of the common law that for every injury the law furnishes a remedy.
    But this is not an action of the first impression in Massachusetts. In the case of Bond vs. Ward 
      , Parsons, C. J., states, that "in the case of Proctor vs. Rice, in Middlesex, where the defendant had recovered judgment, and the chattels attached were returned, he was allowed to maintain trover against the plaintiff, and recover the damages sustained by the temporary loss of the. goods attached, according to the injury sustained by that loss.” And in the case of Hayden vs. Shed 
      , which was very like the case at bar, it was expressly ruled that case would lie for such a wrong.
    
      Miden, for the defendant.
    
      
       1 Chitty on Pleading, 68 —1 B. P. 404.—2 B. B. 442.-6 D 8, E. 659.
    
    
      
       7 Mass. Rep. 130.
    
    
      
       11 Mass. Rep. 50C
    
   Pdtnam, J.,

delivered the opinion of the Court.

This action is brought to recover the damages which the plaintiff sustained by having his goods attached, taken and detained on mesne process, at the suit of the defendant, which suit was dismissed.

At common law, if the plaintiff failed in his suit, he was fined or amerced pro falso clamore, but was not liable to pay costs, eo nomine, to the prevailing party. The penalties inflicted were intended to prevent unnecessary litigation; and they were sometimes so severe, that the party was entitled to the writ of moderato misericordia for relief. Fitz. N. B. 75. For a long time the prevailing party, whether plaintiff or defendant, was entirely without remedy for costs.

Many statutes were passed at various times upon this subject. The statute of Gloucester, 6 Edw. 1, provided * that, where the party recovered damages, he should [ * 195 ] háve costs.

The statutes relating to costs, being construed strictly, embraced only the expensa litis, not the money expended on account of the party himself, or for his own time; and they did not extend to defendants. Something like reciprocity was enacted by the statute of 4 Jac. 1, c. 3, enabling defendants to recover costs where, if the plaintiff had recovered, he would have been entitled to them. But this statute did not extend to a variety of cases, where the defendant vanquished his antagonist. Where a plaintiff, for example, caused a defendant to be arrested, and then discontinued his suit or oecame nonsuit, the defendant was without remedy for his costs, until the statute of 8 Eliz. c. 2.

During all that period we hear of no suit by one who had prevailed against a plaintiff, to recover damages, unless upon the ground that it was malicious and vexatious; and it would not be reasonable to expect that such a suit would be maintained, after provision was made for the case supposed. And so is the fact. No case has been cited from English or American decisions to that point, except one incidentally mentioned by Chief Justice Parsons, while giving the opinion of the Court, in the case of Bond vs. Ward. It does not appear when, or by what judges, or in what court, the decision of the case of Proctor vs. Rice, referred to by the chief justice, was made, nor that the case was argued; and the point said to have been decided was not at all material to the decision in the principal case. It was mentioned cursorily, and not with any remarks of approbation. We do not, therefore, consider this as a binding authority.

The question considered in the case of Hayden vs. Shed, which was cited with some reliance at the bar, was whether trespass could be maintained against one who had acted in virtue of lawful process, which was subsequently abated. And it was [ * 196 J determined in the negative, the * remedy for such an injury being in case, and not in trespass. But it was not decided that such facts, as have been proved in the case at bar, would entitle one to maintain an action of the case. The Court seem rather to have had their mind drawn to the case where a defendant had acted maliciously; observing, that “ It made no difference that the defendant knew or might be supposed to know of the pendency of the former suit, which was the cause of abating the second; although that would be a material circumstance in an action of the case for a malicious prosecution. If,” says the Court, “ one,, knowing that he has no cause of action or complaint, cause another to be arrested, the latter may maintain an action upon the case for this injury.” In the case at bar, the defendant had a good cause of action, and he acted without malice. The case referred to in Bond vs. Ward, upon which we have remarked, is then the only one to be found, in our books, to the point now before the Court.

It has been urged by the counsel for the plaintiff, that as no attachment of property on mesne process is known in England, no such cause of action arises there, and therefore it is that no such action as this is to be found there. But the person may be arrested there, and the injury to the person is of greater consequence, in that country as well as in this, than an injury to property. And unless the arrest has been made under such circumstances as prove malice, it has not been there or here considered as a sufficient cause of action.

In the case at bar, no malice is imputed to the defendant. Anxious to recover a considerable debt, he took those measures, and those only, which under the best advice he supposed adapted to that purpose, without any apparent desire to harass or vex his debtor. Undoubtedly the present plaintiff has sustained considerable loss, in consequence of the suits which the defendant instituted. But it must not be forgotten, in this part of the case, that the defend- [ * 197 ] ant has never to this day obtained payment of his * debt, notwithstanding all his exertions. The misfortunes of the plaintiff have arisen from his pecuniary embarrassments, and not from any abuse of the processes of law, to which the defendant had recourse.

The process in East Florida was not liable to be defeated by any rules that we know, in consequence of the suit which had been commenced here. For the pendency of an action in a foreign country is not a good plea, in abatement or bar, to an action for the same cause here. And in point of fact, of the eight notes, seven only were originally sued here, and of these one was struck out of the declaration; and in regard to those, there seems not to have been any color of objection.

But we go upon the ground that malice on the part of the defendant is a necessary ingredient in an action of this nature; and that it is lawful for any man to enforce his supposed right by any lawful process; formerly under the penalty of fines and amerciaments for the use of the government, if the claim was not well founded; and at this day under the liability of the payment of costs to the adverse party prevailing. The opinion of the Court is, that the nonsuit must stand.

Costs for the defendant.  