A. A. Roberts v. Oliver Danforth

• Decision Date: 11 November 1917
• Parties: A. A. ROBERTS v. OLIVER DANFORTH
• Court: Vermont Supreme Court

102 A. 335

92 Vt. 88

A. A. ROBERTS v. OLIVER DANFORTH

Supreme Court of Vermont

November 11, 1917

May Term, 1917.

CASE. Plea, the general issue and a special plea. Heard on demurrer to the special plea at the June Term, 1916, Bennington County, Fish, J., presiding. Demurrer overruled, pro forma and plea held sufficient. Plaintiff excepted. The opinion states the case.

The judgment overruling the plaintiff's demurrer is affirmed and the cause is remanded.

Holden & Healey and F. C. Archibald for plaintiff.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

HASELTON

This is an action of tort in one count. The defendant filed the general issue and a special plea. To the special plea the plaintiff demurred. His demurrer was overruled pro forma, the plaintiff excepted, and the cause was passed to this Court before final judgment.

The declaration sets out that the plaintiff, while in the employ of one Wise, was engaged in cutting timber on a certain piece of land owned by Wise; that, however, the defendant claimed ownership of the land, which so was in dispute; that the defendant, well knowing that, if his claims were good, the damage to him from the cutting and other acts complained of by him could not exceed fifty dollars, maliciously, etc brought a suit therefor in trespass for four thousand dollars against the plaintiff and others and caused the plaintiff to be arrested on the capias writ issued therein; that the plaintiff was unable to procure bail in so large a sum as four thousand dollars, and was by the direction of the defendant and by virtue of the writ committed to jail and detained therein for a time named. Matters of aggravation and detail are not material to the questions now here presented.

The ground of the defendant's special plea is that the trespass suit is pending. The demurrer, which was overruled goes upon two specified grounds, first, that the plaintiff is entitled to maintain this action notwithstanding the pendency of the trespass suit, and secondly, that if the pendency of the trespass action prevents the plaintiff from maintaining this action, then the special plea is bad as amounting to the general issue. Counsel do not take much time with the second ground of demurrer nor do we. The question that a special plea amounts to the general issue and is therefore bad cannot be entertained under the Practice Act, for thereunder a plea or answer is good, so far as form is concerned, if it is "a brief and simple statement of the facts relied on in defence."

The soundness of the first ground of the demurrer depends upon the nature of the tort alleged. The declaration is in form an action on the case, and the case sought to be stated is for malicious procedure without probable cause. The declaration is not for false imprisonment nor for the abuse of process since all that was done after the issue of the process was done pursuant to it.

The fundamental tort alleged is the malicious suing out of a body writ for nearly a hundred times the amount of any claim the defendant had probable cause to suppose he had against the plaintiff. Austin v. Debnam, 3 B. & C. 139; Savage v. Brewer, 33 Mass 453, 28 Am. Dec. 255; Tomlinson v....