Garing v. Fraser

Pleadings. Case. Perjury. E. 8., a. 82, § 124. Malicious prosecution. In an action against several defendants for conspiring together to procure the plaintiff to be indicted and convicted of a crime, by false and perjured testimoiy, and for causing him to be thus indicted and convicted by such false and perjured testimony, the gist of the action is the alleged tort and not the alleged conspiracy. At common law an action does not lie against a witness for perjury; and the provisions of R. S., c. 82, § 124, are confined to perjury in civil cases. A simple nol. pros, is not such a determination of an indictment as will entitle the accused to maintain an action for malicious prosecution.

On exceptions to the rulings of the presiding justice in. sustaining a demurrer to the following declaration. (Declaration in writ.) "In a plea of the case, for that the said, plaintiff being a good, true and faithful citizen of this State, and having behaved and conducted herself as such from, her nativity to the present time, and so among her neighbors as well as others was known and reputed. Yet the said defendants, not ignorant of the premises, but contriving and maliciously intending to hurt, wound and injure the plaintiff, and her unjustly to vex, molest and disturb, and to cause her to suffer punishment and to be fined, and also imprisoned for a long space of time, and thus to be deprived of her liberty, and thereby to impoverish, oppress and wholly ruin her; did at Portland, in the county of Cumberland and State of Maine, on the second day of January, A. D., 1883,-maliciously and wickedly conspire, combine, confederate and agree together amongst themselves to falsely accuse, and by means of false testimony, to procure the plaintiff to be indicted and convicted of the crime of maintaining a common nuisance, an indictable ■offence by the laws of the State of Maine, and punished by a fine and imprisonment; and did then and there, at the January term of the superior court, within and for the county of Cumberland, held at Portland, aforesaid, on the first Tuesday of January, A. D., 1883, by false, fabricated and perjured testimony, accuse •the said plaintiff of the crime aforesaid before the grand jury of the county aforesaid, whereby said grand jury returned into ¡said court a certain bill of indictment in words and figures as ■follows, viz. "Which said indictment the court aforesaid caused to be read, taucl caused said plaintiff to answer thereto in said court before a jury of the court aforesaid, duly impanneled to try said plaintiff ■on said indictment procured as aforesaid, and said plaintiff was (put on her trial on said indictment in said court on the nineteenth -day of January, aforesaid, and the said defendants then and "there at said trial before the court and jury aforesaid, gave said false, fabricated and perjured testimony against said plaintiff, .and in support of the allegations contained in said indictment procured as aforesaid and by means of said false, fabricated and perjured testimony given as aforesaid before the court and jury aforesaid the plaintiff was by the verdict of said jury found guilty of the crime charged in said indictment, and the said court thereafterwards on motion of said plaintiff and a hearing thereon, set aside the verdict of the jury aforesaid because of the false, fabricated and perjured testimony given by said defendants at the trial as aforesaid, and thereafterwards the county attorney, who prosecutes for the State of Maine within and for the county of Cumberland, entered on the records of said court a nolle prosequi to said indictment, as by the records and proceedings remaining in said court appears. "By means of the premises aforesaid and the said false, fabricated and perjured testimony given in said court as aforesaid, the plaintiff has suffered great anxiety and pain of body and mind, and has been forced and obliged to lay out and expend divers sums of money in the whole amounting to a large sum of money, to wit, six hundred and fifty dollars, in and about defending herself in the premises, and has been greatly hindered and prevented by reason of the premises from transacting her lawful and legal affairs for the space of twenty-six days, and also by reason and means of the said premises she, the plaintiff, has been, and is, otherwise greatly injured in credit and circumstances. To the damage of the said plaintiff, (as she says) the sum of fifteen thousand dollars.” The allegations in the declaration are such as show that the act complained of was an illegal act and unlawfully done and therefore malicious. Page v. Cushing, 38 Maine, 523. In a legal sense any act, done wilfully and purposely to the prejudice and injury.of another, which is unlawful, is against, that person malicious. Com. v. Snelling, 15 Pick. 337 ; Wills v. Hoyes, 12 Pick. 324; Mitchell v. Wall, 111 Mass. 492; Humphries v. Parker, 52 Maine, 502; Pullen v. Glidden, 66 Maine, 202. This action is brought to recover damages caused by the perjury of the defendants. The constitution Art. 1, § 19, provides that "every person for an injury done him in his person, reputation property or immunities, shall have a remedy by due course of law and right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay.” The 5 Eliz. c. 9, made perpetual by 29 Eliz. chapter 5, § 6, enacted that when any person shall be convicted upon the false testimony of witnesses; that upon every reversal of such conviction the parties grieved may recover his or their damages against all and every such witness. The law when .properly administered gives redress for all injuries caused by the wrongful acts of others, and this ancient statute was enacted for that purpose and it is now undoubtedly common law with us. As to the effect of entry of nol.pros. see : Brown v. Rcmdcill, 36 Conn. 56; Swift’s Digest, Yol. 1, p. 491; Shaw, C. J., in Barker v. Fareby, 10 Cush. 281; Sherwood, C. J., in Mayer v. Walter, 64 Penn. 286 ; Brook v. Oarpenter, 3 Bing. 297 ; Jones v. Given, Gilbert’s Cas. 185 ; Gilbert v. Fmmons, 42 111. 143; Ghapman v. Woods, 6 Blackf. 504; Moulton v. Beecher, 15 N. Y. S. C. 100; Briggs v. Burton, 44 Yt. 143 ; Shock v. McGhesney, 4 Yeates, 507 ; Kelley v. Sage, 12 Kan. 110; Marbourg v. Smith, 11 Kan. 554; Morgan v. Hewes, 2 T. B. 225. cited: Parker v. Hunting-, ton, 2 Gray, 124; Bannehey v. Woodsum, 100 Mass. 195; Gibson v. Waterhouse, 4 Maine, 226 ; Payson v. Oaswell, 22 Maine, 212 ; Humphries v. Parker, 52 Maine, 502 ; Parker v. Farley, 10 Cush. 279; Bacon v. Towne, 4 Cush. 217; Brown v. Lakeman, 12 Cush. 482 ; Willington v. Stearns, 1 Pick. 497 ; Bennett v. Bavis, 62 Maine, 544; Brown v. Webber, 6 Cush. 570.