White v. 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.