Lawrence v. Hagerman

• Decision Date: 30 September 1870
• Citation: 1870 WL 6478,8 Am.Rep. 674,56 Ill. 68
• Parties: MARVIN A. LAWRENCEv.HORATIO N. HAGERMAN.
• Court: Illinois Supreme Court

56 Ill. 68

1870 WL 6478 (Ill.)

8 Am.Rep. 674

MARVIN A. LAWRENCE

v.HORATIO N. HAGERMAN.

Supreme Court of Illinois.

September Term, 1870.

*69 APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action on the case, brought by Hagerman against Lawrence and others, to recover damages for the wrongful and malicious suing out by the defendants of a writ of attachment, without probable cause, and causing the same to be levied upon the goods and chattels of the plaintiff.

In the first count of the plaintiff's declaration, which is substantially like the others, it is alleged that the plaintiff was engaged in the business of buying and selling grain, stock and other products, and was constantly shipping the same to Chicago for sale, which was his main market therefor, his business being large and constantly increasing. Averring that the plaintiff had shipped to Chicago four car loads of hogs, of great value, to wit, of the value of $3,500, and which were lawfully in the possession of and the property of the plaintiff, in which all his capital for the conducting of his said business had been invested; that the defendants, well knowing the premises, but contriving and wrongfully, maliciously and injuriously intending to injure the plaintiff, and to deprive him of the profits he otherwise would have derived from conducting his said business, and from the sale of his said produce, and to break up his said business and employment, and cause him to be greatly aggrieved and injured in the premises in that behalf, wrongfully, unjustly and maliciously and without probable cause therefor, caused and procured to be issued out of the superior court of Chicago, a writ of attachment, etc., and wrongfully, injuriously and maliciously caused the same to be levied on the property of the plaintiff, to wit, two hundred and forty-nine hogs, of great value, to wit, of the value of $3,500, and caused and procured the said hogs, by virtue of said writ, to be kept and detained in the custody of the sheriff for a long space of time, etc.

In reference to the injury thereby occasioned, it is alleged “that the said plaintiff, in order to get possession of said goods, or the proceeds of the same, was forced and obliged to pay out a large amount of money, to wit, the sum of $1,200, in attorney's fees and costs, and charges and other expenses in the litigation which said defendants forced upon said plaintiff in the said court and in the supreme court of the State of Illinois, and the said plaintiff has been and is by means of the premises greatly injured and damnified in his credit and circumstances. * * * * And plaintiff says, that by means of the premises aforesaid, and the wrongful and injurious acts of the said defendants toward him, his business aforementioned was broken up and destroyed, and the profits that would have otherwise accrued to said plaintiff from the prosecution of and conducting of said business were wholly lost, and the profits that would otherwise have accrued to said plaintiff from the sale of said property of plaintiff, so seized and attached as aforesaid, was wholly lost to said plaintiff, and the said property so attached as aforesaid by means of the premises was greatly depreciated in value, and in order that the same might not be rendered totally valueless, the plaintiff was forced and obliged to consent to a sale of said property by the sheriff at a rate and price greatly below the real value of said hogs, and that such sale was attended with great expense which was taken from the proceeds of such sale and the balance of the proceeds detained and kept in possession by the sheriff of said county. And the plaintiff says, that by reason of the premises aforesaid, he lost a large amount of money, to wit, the sum of $1,000, on the sale of said hogs. And he further says, that by reason of the wrongful and injurious acts of the defendants aforesaid, he was unable to meet his engagements or conduct his business, whereby he was greatly injured in his credit and circumstances and reputation. And he states that by reason of such injurious acts by said defendants aforesaid, his business was broken up and his means of obtaining a livelihood taken away. And by means of the false and malicious averments in the said affidavit of said Lawrence, and upon which said writ of attachment was founded, his business reputation, and credit were greatly injured, to wit, at the county of Cook aforesaid, to the damage of said plaintiff of $6,000.”

And in another count, the plaintiff averred, as a consequence of such wrongful acts of the defendants, “that his reputation as a business man was greatly injured by the false and malicious affidavit upon which said writ was based, and which was made by said Marvin A. Lawrence, charging the said plaintiff with fraud.”

The trial in the court below resulted in a verdict against Lawrence for $2,000, upon which judgment was rendered. Thereupon the latter took this appeal.

Mr. M. F. TULEY, Mr. J. N. BARKER, Mr. WILLIAM HOPKINS and Mr. T. J. TULEY for the appellant.

An action on the case will not lie for malicious prosecution, in the wrongful suing out of a writ of attachment, without probable cause.

At common law no action will lie for a malicious prosecution of a civil suit, without cause, where there is no arrest. Savil v. Roberts, 1 Salk. 14; Gorton v. Brown, 27 Ill. 499.

A different rule is laid down in Drake on Attachments, chapter 39, section 726, but the authorities cited in support of the rule do not seem to justify the conclusion of the author.

Messrs. SPAFFORD, MCDAID & WILSON, for the appellee.

An action on the case will lie for maliciously suing out a writ of attachment without probable cause. In Chapman v. Pickersgill, 2 Wils. 145, an action on the case was sustained for falsely and maliciously suing out a commission of bankruptcy, wherein the court cited 5 Mod. 407, 8, 10; Id. 218; 12 Id. 210, 273; Bulwer's Case, 7 Rep. 1; 1 Ro. Abr. 101; 1 Ven. 86; 1 Sid. 464.

This case furnishes a complete answer to the position taken by appellant against the maintenance of this action. But we are not without precedents in our own country, in States having statutes authorizing attachments and requiring the creditor to give bond. Fortman v. Rottier, 8 Ohio N. S. 548; Tomlinson v. Warner, 9 Ohio, 103; Spengler v. Davy, 15 Gratt. (Va.) 381; McLaren v. Birdsong, 24 Ga. 265; 29 Cal. 644; Hill v. Palron, 38 Mo. 258; Bump v. Belts, 19 Wend. 421; Pierce v. Thompson, 6 Pick. 192; Robinson v. Kellum, 6 Cal. 399.

These cases are in addition to those cited in Drake on Attachments, which have already been commented upon by appellant in his brief.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The questions presented by this record, upon which appellant relies to reverse the judgment, arise mainly upon the errors assigned which question the rulings of the court in the admission and rejection of evidence, and in the giving and refusing of instructions. Upon the errors assigned the appellant makes three other distinct points. First, that the rule for ascertaining the measure of damages was incorrectly stated, Second, that the verdict is wholly unsupported by the evidence and is excessive, and Third, that the action will not lie.

The objections to the admission of evidence are too numerous to be noticed in detail, but they may all be grouped under one general objection, viz.: that the evidence to show the extent of the injury by the wrongful act complained of, to the business, credit and reputation of the appellee, was inadmissible under the averments of the declaration. There are some minor objections to the form of the questions propounded to the witnesses, and the order in which the testimony was presented, which we do not deem material to be considered.

The general objection to the instructions given for the appellee raise the same question as that taken to the admission of improper evidence, and they may properly be considered together.

The action is founded in tort, for maliciously suing out the process of a court. The averment in the declaration is, that the appellant “wrongfully, unjustly and maliciously, and without probable cause therefor,” sued out a writ of attachment under the attachment act, and with a malicious and wrongful purpose caused the same to be levied on the goods and chattels of the appellee. It is alleged that, by reason of the premises, the appellee sustained special damage in the depreciation of the value of the property levied on, and in the expenditure of large sums of money in the defense of the action, and, as general damage, that his business was broken up, his credit and reputation impaired and destroyed.

The testimony offered to which objections were interposed tended to show, negatively at least, that there was no probable cause for suing out the writ. This was a material averment and it was necessary to be proven. The evidence offered for that purpose was legitimate and proper.

The main objection taken is to the evidence offered to establish the measure of damages. It seems to us that the averments in the declaration are broad and comprehensive enough to admit of evidence of all the injuries sustained in consequence of the wrongful act alleged. For the purpose of estimating the extent and magnitude of the injury, the court permitted the appellee to introduce evidence of the nature, character, and amount of business transacted at and before the date of the wrongful levy, and also evidence of the complete destruction of that business, and of the extent to which the credit and financial reputation of the appellee were impaired, and also evidence of the actual loss of the stock levied on, and of the expenses incurred in and about the defense of the suit. No reason is perceived why these facts do not constitute proper elements for the consideration of a jury in estimating the damages occasioned by the tortious act of the...