Lauzon v. Charroux

• Decision Date: 02 February 1894
• Citation: 18 R.I. 467,28 A. 975
• Parties: LAUZON v. CHARROUX.
• Court: Rhode Island Supreme Court

28 A. 975

18 R.I. 467

LAUZON

v. CHARROUX.

Supreme Court of Rhode Island.

Feb. 2, 1894.

Case certified from court of common pleas, Providence county.

Action by Maxime Lauzon against Nazaire Charroux for malicious prosecution. Demurrer to declaration overruled.

Elisha C. Mowry and Livingston Scott, for plaintiff.

Edwin Aldrich and George W. Greene, for defendant.

TILLINGHAST, J. This is an action on the case for malicious prosecution. The declaration, omitting the formal part, is as follows, viz.: "For that the defendant, at said Woonsocket, on, to wit, the 24th day of March, A. D. 1893, maliciously intending to oppress and unjustly to imprison the plaintiff, prosecuted out of the clerk's office of the district court of the twelfth judicial district a writ of arrest against the plaintiff, in due form of law, in an action of debt on judgment wherein the said defendant was named as plaintiff, and containing appended thereto a sworn affidavit of the defendant, Nazaire Charroux, wherein he declared—First, that he, the aforesaid Nazaire Charroux, had a just claim against the plaintiff, Maxime Lauzon, upon which he, said Nazaire Charroux, expected to recover in the action commenced by said writ a sum sufficient to give jurisdiction to the court to which said writ was returnable; and wherein, secondly, he declared, falsely and fraudulently, maliciously intending to oppress and unjustly to imprison the plaintiff, that the plaintiff was about to leave the state, without leaving therein real or personal estate whereon an execution that might be obtained in said action could be served. That the aforesaid writ of arrest was directed to the sheriff of the county of Providence, his deputies, or to either of the town sergeants or constables in the county of Providence, commanding them to arrest the body of the plaintiff, and him in safe custody keep, to answer the complaint of the aforesaid Nazaire Charroux at a district court of the twelfth judicial district, to be holden in the Hope building, in Woonsocket, in said county, on the 5th day of April, A. D. 1893, at nine o'clock in the forenoon. That, to wit, on the 27th day of March, A. D. 1893, by force of the aforesaid writ, and on the false and fraudulent affidavit of the defendant, the defendant caused the plaintiff to be arrested, and, for want of sufficient bail to the said writ, which the plaintiff could not obtain, to be committed to the jail in the county of Providence, where the plaintiff was detained for a long space of time, to wit, for the space of seventeen days; and that thereafterwards, to wit, on the 24th day of May, A. D. 1893, at a district court of the twelfth judicial district, aforesaid, to which the said writ was returnable, and wherein the said writ and action of the said Nazaire Charroux against the plaintiff was duly entered, it was adjudged and considered by the justice of the said court, upon the motion of the plaintiff to that end made, that the plaintiff was not about to leave the state, either at the time of the making of the said affidavit or at the time of the said service of the aforesaid writ, and that the plaintiff was legally entitled to be discharged from said arrest; but that he had been previously discharged therefrom, on taking the poor debtor's oath, according to the statute in such case made and provided; and that thereafter wards, to wit, on the 24th day of May, A. D. 1893, judgment was duly rendered and entered in said suit in favor of said Nazaire Charroux, the plaintiff therein, for the amount claimed, with costs, and that execution issue thereon against the goods, chattels, and real estate only of said Maxime Lauzon, the defendant therein, and that said action and all proceedings therein were thereby fully and completely ended and terminated. And the plaintiff in fact says that the defendant, the said Nazaire Charroux, in prosecuting the said writ against the plaintiff, the said Maxime Lauzon, maliciously caused the plaintiff to be imprisoned by means of the false and fraudulent affidavit of the defendant aforesaid, without having any lawful or probable cause for making said affidavit, and thereby causing said imprisonment; but that the defendant was wholly guided in the premises by wanton malice, and by a desire to oppress, injure, and defraud the plaintiff. And the plaintiff further says that by means of the imprisonment aforesaid of him, the plaintiff, procured through the aforesaid false and fraudulent affidavit of the defendant, and the malicious prosecution of said writ of arrest, he was deprived of his liberty, his business was greatly impeded, his reputation injured, and he was put to great expense, and suffered great vexation, grief, and oppression." To this declaration the defendant has demurred on the following grounds, viz.: First, because it is not alleged that the action mentioned has terminated in favor of the plaintiff, Lauzon; second, because it is not alleged that said action was instituted maliciously; third, because it is not alleged that said action was begun or prosecuted by the defendant without probable cause; and, fourth, because it is not alleged that the proceeding for the arrest therein alleged to have been malicious has terminated in favor of the plaintiff, Lauzon.

The general and familiar rule of law is that, in order to entitle the plaintiff to recover in an action for malicious prosecution, three things must concur, viz.: (1) The motive of the party instituting or prosecuting the suit or proceeding must have been...