Wood v. Weir

• Decision Date: 30 June 1845
• Citation: 44 Ky. 544
• Parties: Wood v. Weir and Sayre.
• Court: Kentucky Court of Appeals

44 Ky. 544

Wood v. Weir and Sayre.

Court of Appeals of Kentucky.

June 30, 1845

Malicious suit. Probable cause. Case.

ERROR TO THE FAYETTE CIRCUIT.

Robertson for plaintiff.

Robinson & Johnson and Wolley for defendants.

OPINION

EWING CHIEF JUSTICE.

Case stated

WEIR exhibited his bill in Chancery, prepared by Sayre as his attorney, against Wood, his debtor, and principal in several liabilities, amounting in the aggregate to near $4,000, under the statutes of 1828 and 1838, (2 Statute Laws, 1441,) and (3 Stat. Law, 116,) in which Wood is charged with a fraudulent intention to remove himself and estate, consisting of a house and lot in Lexington, and slaves and other personalties, or sell and dispose of the same to the injury, loss, & c., of Weir, and prayed that " Wood might be enjoined and restrained from removing himself or his effects from the Commonwealth, until he secure your orator in his said debts and security ships, and that the Sheriff of Fayette county be directed to take into his possession, said house and lot, furniture and slaves, to indemnify and secure your orator, and hold the same till the farther order of the Court unless the said Wood will give bond with sufficient security, in at least the penalty of $4,000, to pay your orator his said debts, and to indemnify and secure him against loss, and to release him from his said suretyships." Upon this bill, exhibited by the defendants to two Justices of the Peace, empowered to grant injunctions, & c., an order was granted to the Clerk, to issue a subpœ na with an injunction, directed to the Sheriff of Fayette county, as prayed for in the bill, on the complainant's executing bond, & c.

A subpœ na, with the injunction and order to the Sheriff prayed for, was accordingly issued and placed in the hands of the Sheriff, who in pursuance of its mandate, took possession of the house and lot, inducing Wood and his wife and children to go out and seek shelter elsewhere in the city, when he locked the doors and nailed up the windows of the house. Wood and family remained out for several days, and until, on the motion of Wood the Circuit Court quashed so much of the order as required the Sheriff to take into his possession his house and lot.

Whereupon Wood brought an action on the case against Weir, and Sayre, his attorney, for a malicious suit, or rather, for obtaining a malicious, vexatious and illegal order, by which the plaintiff and his family were wrongfully turned out of the possession of their dwelling.

The declaration avers, in substance, the filing of the bill by Weir as client, and Sayre as his attorney and counsellor, " falsely alleging that the plaintiff intended fraudulently to remove his effects from Kentucky, & c., whereupon they wrongfully and maliciously obtained from two Justices, authorized to grant injunctions and restraining orders, a judicial order, directing the Sheriff of the county, among other things, to take possession of the dwelling house, in which the plaintiff and his family then resided, unless he would give security in a sum much larger than his indebtedness to Weir, and the plaintiff being unable to give said security, the defendants maliciously and tortiously induced the Sheriff to turn the plaintiff and his wife and family out of their dwelling house, who did turn them out and take possession, in the execution of said order, and lock the doors, leaving them to seek shelter in the commons, & c."

The defendants pleaded not guilty, and the jury having found for them, the plaintiff has brought the case to this Court, by writ of error.

To maintain an action for a malicious suit, as well as for a malicious prosecution, three things are necessary to be made out by the plaintiff. 1st. A want of probable cause--2nd. Malice in the defendant--and 3rd. Damage to the plaintiff. Malice may be implied from the want of probable cause, but this implication may be explained and repelled by facts and circumstances indicating a fair and legitimate purpose, and honest pursuit of a claim believed to be just. So, though there be probable cause, and even just grounds for the suit, if, from bad intentions or malicious motives, an illegal, oppressive and vexatious order is procured from Justices of the Peace, by the attorney or client, or both, without probable cause or excuse, by which damage is done to the defendant, an action will lie against them both. And malice may be implied from the want of probable excuse, or grounds for the order, which may be explained away or repelled by counteracting circumstances, as in the case of a suit. If it could not be maintained, then there might be a most grievous injury without a remedy. The Justices could not be rendered liable, for a mere error of judgment, without motive, and if the attorney, or attorney and client, if they acted in concert, cannot be made liable, then would the injured party be without redress.

To maintain an action for a malicious suit, it is necessary for plaintiff to allege and prove want of probable cause; malice and damage to the plaintiff-- the second may be implied from the absence of the first, but this implication may be repelled by facts showing a lawful and honest purpose.

It is said that Justices, in this form of action, can be made liable for a malicious conviction; Burley vs Bethum, (5 Taunton, 580,) and we cannot doubt that they may be rendered liable for a malicious and vexatious order; if so, most certainly should an attorney be rendered liable for the malicious procurement of such an order.

Justices of the Peace, it is known, are in the general, not lawyers nor acquainted with the substance or forms of judicial orders, and but illy advised of the proper occasions, or cases, in which they should be granted. Exnecessitate rei, under our judicial system, they have been intrusted with the power to grant them, but in the general, distrustful of their own legal qualification, they place much reliance on the counsel of the attorney, as to the propriety of the order, and intrust to him its preparation. It would be strange, therefore, if the attorney, by art and contrivance, the abuse of the confidence reposed, and prostitution of his profession, should procure from the Justices, from malicious motives to the defendant, an illegal and oppressive order by which injury accrues to the defendant, if the attorney could not be made liable for the wrong. It is contended, that this rule will expose attorneys to perplexing litigation, to the manifest injury of the profession. If it should, the law knows no distinction of persons; a different rule cannot, as to them, be recognized by this Court, from that which is applicable to others. Besides, this is a numerous class, powerful for good or evil. and holding them to a strict accountability, will have the effect to exalt and dignify the...