
    Harry White versus Nathaniel B. Dingley.
    A creditor gives his debtor a license for two years, and in the letter of license covenants that he will not sue, &c., and that if he shall sue, the debtor shall be discharged of his debt; notwithstanding which, he sues within the two years, and the debtor pleads the letter of license in bar, and has judgment; he cannot afterwards maintain an action against the creditor on the covenant.
    No action lies for damages sustained by being sued in a civil action, unless such an action was malicious and without probable cause.
    This was an action of covenant broken, in which the plaintiff declares that the said Dingley, by a certain deed described, among other things, covenanted with the plaintiff that neither he nor his executors, &c., should, during the term of two years from the date of the deed, sue, arrest, attach, or prosecute, the plaintiff for a certain demand which the defendant then had against the plaintiff. But the said Dingley, in no wise regarding his said covenant, but wishing to distress and injure -the plaintiff, and, by that means, to compel him to pay the said demand, before the said two years were expired, arrested the plaintiff on the demand aforesaid, and committed him to prison, where, being unable to procure bail for his liberty, he was compelled to remain for the space of three hundred days, whereby his health was greatly impaired, and his life much endangered.
    Upon oyer prayed by the defendant on the deed declared on, it appeared to be a letter of license in common form ; by which the several creditors who sealed it gave to the plaintiff full liberty and license, for two years from the date, to go about and attend to his business and affairs, wdthout any let, suit, &c. Then [ * 434 ] follows a covenant that the creditors * will not sue, &e. and if they shall so sue, &c., then the said White shall be wholly discharged against the creditor or creditors so suing, &c.
    The defendant then pleads, in bar of this action, that he did commence an action on his said demand against the plaintiff before the expiration of the said two years; to which said action the now plaintiff pleaded the said letter of license in bar, and judgment was rendered therein that the said White should recover his costs.
    To this plea in bar the plaintiff demurs generally, and the defendant joins in demurrer.
    
      Wilde, for the plaintiff,
    contended that he was entitled to this action, in addition to the discharge from the debt which he owed. The law of the case must be the same, whether the demand be large or small. But if the demand be of a trifling sum, the barring it by the letter of license is a very inadequate satisfaction for a tedious imprisonment. The debt was discharged the instant the debtor was arrested ;  it seems absurd, then, to consider it as satisfaction for a posterior injury. In estimating the damages the plaintiff is to recover in this action, it may be very proper for the jury to deduct the amount of the debt barred out of the damages they shall find For those damages the plaintiff must have an action, or he is left wholly without compensation for the imprisonment.
    The letter of license contains two distinct provisions. There is, first, a positive covenant not to sue, &c., within the term granted; and, secondly, there is a particular covenant for a specific forfeiture, independent of the other, if he shall sue. We prove the first covenant broken, and our title to damages follows of course.
    
      Mellen, for the defendant,
    argued that the covenant that the creditor should be barred of his debt was either an agreed measure and liquidation of the damages to be occasioned by the breach of the covenant not to sue, &c., or it is the agreement of the parties that the party breaking his covenant shall pay so much by way of forfeiture or penalty, which, indeed, amounts to the same thing.
    *In the case of Lowe vs. Peers, 
       Lord Mansfield [*435 ] says, “ There is a difference between covenants in general, and covenants secured by a penalty of forfeiture. In the latter case, the obligee has his election. He may either bring an action of debt for the penalty, and recover the penalty; (after which recovery of the penalty, he cannot resort to the covenant, because the penalty is to be a satisfaction of the whole;) or, if he does not choose to go for the penalty, he may proceed upon the covenant, and recover more or less than the penalty, to ties quoties.”
    
    The same doctrine is laid down by his lordship in the case of Bird vs. Randall. 
       In the case at bar, the plaintiff has gone for the penalty, by pleading the license in bar of the action, and he cannot now resort to the covenant.
    The plaintiff might, in the former action, have pleaded to the merits, if he had so pleased, instead of availing himself of the penalty in the covenant. Had he done so, there might have been some ground for this action. But he chose to demand the penalty, and it was, in effect, paid the moment it was demanded, thereby discharging the defendant from any other action.
    
      
      
        Bac. Abr. Covenant, A
    
    
      
       4 Burr. 2228.
    
    
      
       3 Burr. 1345.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

We are satisfied that this action cannot be maintained. The forfeiture of the debt is not in the nature of a penalty, but is a liquidation of the damages to be paid in case of a breach of the covenant on the part of the creditor. The parties have made their contract, and we have no authority to alter it, or to make another for them in its stead.

No action, by the common law, lies for damages sustained by suing a civil action, when the plaintiff fails, unless it be alleged and shown to be malicious, and without probable cause.

Defendant’s plea good.  