Zinn v. Rice

W. Allen, J.

It is not contended that the facts alleged in the declaration and offered to be proved at the trial are not sufficient to sustain an action by the plaintiff against the defendant. The defendant’s contention is, that the action is prematurely brought; that it is an action for malicious prosecution, and subject to the rule that a suit for malicious prosecution cannot be maintained until the prosecution has terminated in favor of the plaintiff. But the rule applies only to suits for maliciously *4 instituting groundless prosecutions, and does not apply to the injurious and malicious use of process in proceedings which were commenced with probable cause. The latter, being for the malicious use of legal process by acts authorized by its terms, may be called actions for malicious prosecution, to distinguish them from actions for the abuse of process by doing, under color of legal process, acts not authorized by it; but there is no rule of law that in such an action the termination of any former suit must be shown. The rule is founded on the necessity of proving that a prosecution which itself puts in issue the truth of the charge on which it is founded is without probable cause. A defendant i.n such an action cannot bring another action to try the issue tendered him in the first, while that issue is pending. The rule is by its terms and nature limited to a prosecution to establish a charge or cause of action, and cannot include an ex parte use of process incidental and collateral to such a prosecution, and in defence to which falsity of the charge cannot be shown. Parker v. Langly, 10 Mod. 209. Fortman v. Rottier, 8 Ohio St. 548 , Bump v. Betts, 19 Wend. 421 . Barnett v. Peed, 51 Penn. St. 190. Jenings v. Florence, 2 C. B. (N. S.) 467. Churchill v. Siggers, 3 El. & Bl. 929. Wentworth v. Bullen, 9 B. & C. 840. Savage v. Brewer, 16 Pick. 453 . Bicknell v. Dorion, 16 Pick, 478. Wood v. Graves, 144 Mass. 365 . Everett v. Henderson, 146 Mass. 89 .

In the case at bar the grievance of the plaintiff is not that the defendant maliciously commenced a groundless suit. He admits that the defendant had a good cause of action, and that there is no defence to the suit, and that its termination cannot be in his favor. Nor is his grievance that the defendant abused the process in the formér suit, and under color of it did things not authorized by its terms. His grievance is that the defendant, having a just cause of action and a legal suit against this plaintiff, made an ■ excessive attachment of property which he knew was not needed for the security of his debt, not for the purpose of securing his debt, but for the purpose of injuring the plaintiff. If the plaintiff has any right of action, which is not controverted, it is idle to say that he must wait until the former action has terminated in his favor.

The defendant contends that the amount of the debt must be *5 fixed by the determination of the former suit, and that it cannot be shown in this suit. We know of no authority or reason for this. The amount of the debt cannot exceed the amount declared for in the suit, and that is admitted to be due so far certainly as affects this suit. Beyond that there is no question in the former suit, and no issue, and the proceedings complained of were ex parte, and they were terminated by the reduction of the attachment. It is argued that the plaintiff in that suit may amend his declaration, and introduce a new cause of action. That case, as stated by the plaintiff himself, does not present any issue involved in the case at bar, and the possibility that a new cause of action may be added, if it existed, would not be sufficient to show that the issues presented in this case are pending in that, or to bring it within the terms or reason of the rule that the liability of this plaintiff to such possible cause of action Can be tried only in that action. Exceptions sustained.