Barnett v. Reed

• Decision Date: 08 January 1866
• Citation: 51 Pa. 190
• Parties: Barnett <I>versus</I> Reed.
• Court: Pennsylvania Supreme Court

Page 190

51 Pa. 190

Barnett versus Reed.

Supreme Court of Pennsylvania.

January 8, 1866.

ERROR to the Court of Common Pleas of Armstrong county.

COPYRIGHT MATERIAL OMITTED

Golden & Neale, for plaintiffs in error:—

"1st. Can the plaintiff recover in the present form of action? or were the instructions of the court upon defendant's first and eleventh points correct?

"2d. Had Barnett the right to hold and use for his own protection the $1250 note? or were the instructions of the court upon the plaintiff's point submitted at the close of the charge correct?

"3d. Was there in this case such evidence of actual malice in John Barnett, or such absence of probable cause from which it might be inferred, as would authorize the court to submit the question to the jury, or from which the jury would be justifiable in finding for the plaintiff? These inquiries involve the propriety of the answers of the court to defendant's second, third, fourth, fifth and sixth points concerning the effect of the records and proceedings of the court, the action of Barnett's counsel and his own personal action.

"4th. What was the measure of damages in the cause under the evidence? This involves the propriety of the answers to defendant's seventh, eighth and ninth points."

1st. If the note was satisfied before judgment entered the debt was extinguished; the judgment was void and the executions consequently void. Case lies for malicious use of lawful process, not of process void at its inception; the action here should have been trespass: Maher v. Ashmead, 6 Casey 334; Baird v. Householder, 8 Id. 168.

2d. The practice requires points to be submitted before the argument commences, and it should be so, that counsel may be heard on the law by the court and on the facts by the jury.

The instructions on this point were erroneous. If Barnett paid the debt, he was entitled to all the rights and remedies of the creditor to enforce reimbursement from the principal and contribution from his co-sureties, and thus had a right to use the note. Equity regards not the form: McCormick's Adm'r. v. Irwin, 11 Casey 14.

Although the giving of the $1264 note and its acceptance by the bank paid the $1250 note and extinguished the debt to the bank, yet it was not so as between S. M. Reed and his co-surety. A surety may be discharged by extension of the time of payment, but not by payment: Stickel v. Stickel, 4 Casey 233; Whitehill v. Wilson, 3 Pa. R. 405: and the form of enforcing the claim against a co-surety is not regarded: Yard v. Patton, 1 Harris 287; Gossin v. Brown, 1 Jones 531; Lloyd v. Brown, Id. 48; Brightly's Equity, pp. 131-133, §§ 140 and 141.

3d. It is error to submit to the jury the question of want of probable cause without evidence: Fisler v. Forrester, 9 Casey 501. The declaration does not allege malicious entering of the judgment, it is for malicious abuse of legal process. Defendant did not abuse or maliciously use legal process. This consists in something occurring after issuing process. The proceedings could not be malicious, for the commission of a lawful act is not actionable, although malicious: Jenkins v. Fowler, 12 Harris 308. An execution issued on a lawful judgment cannot be malicious. Barnett's responsibility on the notes received for the cattle still continued. The defendants in the execution asked the court to open the judgment and stay proceedings; the court did this for six months, and then ordered the stay to be taken off and execution to proceed. They also asked an injunction to restrain proceedings, which was refused, and an order awarded to sell plaintiff's property. There were adjudications that Barnett might use the judgment for his protection. The court erred in putting the question on the knowledge and not on probable cause; knowledge is but evidence of want of probable cause, not the thing itself: Schofield v. Ferror, 11 Wright 106; Beach v. Wheeler, 6 Casey 69. Failure in the action is not evidence of malice: Ray v. Law, 1 P. C. C. R. 210.

4. Compensation was the true measure of damages in this case: McInroy v. Dyer, 11 Wright 118. The definition of compensatory damages is wrong and unjust: Sedgwick on Damages 37, 38.

J. Boggs, for defendant in error.—Where the injury is immediate, trespass lies; where consequential, case: Scott v. Shepherd, 2 Wm. Blackstone 892; 1 Sm. Lead. Cas. 326. Trespass lies for injuries accompanied by force; case, where there is no force: 18 Johns. R. 257; 6 Cowan 342; Cotteral v. Cummins, 6 S. & R. 348; Smith v. Rutherford, 2 Id. 358; Elsee v. Smith, 1 D. & R. 97; Learne v. Bray, 3 East 593; Day v. Edwards, 5 Term R. 648. So for malicious abuse of legal process, case is the form of action: Somer v. Wilt, 4 S. & R. 18; Water v. Freeman, Hob. 264. But trespass might be waived: Vandresser v. King, 10 Casey 203.

The giving the $1264 note to take up the $1250 note was an extension of the time, not an extinguishment, and therefore a discharge of the surety: 2 Pars. on Notes 203-239-240; Crosby v. Wyall, 10 N. H. 318; Stafford Bank v. Croley, 8 Greenl. 191; Longly v. Griggs, 10 Pick. 121.

There was evidence of malice and want of probable cause: in the issuing of the execution it is presumed in law that the counsel acted under the direction of his client: Somer v. Wilt.

In malicious abuse of process, as here, the damages should include not only the value of the property, but all expenses incurred by plaintiff in defending himself against malicious proceedings.

The opinion of the court was delivered, January 8th 1866, by STRONG, J.

If the judgment against Reed, the plaintiff below and the execution thereon sued out against him by the defendant were not void, case, rather than trespass, was manifestly the proper remedy. Then the wrong of which the plaintiff complained was the malicious abuse of legal process, for which an action on the case lies. And surely it cannot be maintained that the judgment and execution were nullities because the debt was paid before the judgment was entered. Had it been paid after the rendition of the judgment, there would be more reason for arguing that the execution was void. There are decisions to the effect that an execution upon a paid judgment is a nullity, and...