The defendant pleaded, in effect, that the advice given by him was given in the character of an attorney.
Replication de injuria.
Special demurrer. Joinder.[[407]]
Lord Denman, C. J. The case of Pechell v. Watson, 8 M. & W. 691, proceeded on the principle that to maintain an action already commenced was unlawful. That is not here charged; and therefore the count ought to show the ingredients which make the instigation to a suit actionable. The plaintiff has not done this; for, beyond all doubt, the absence of reasonable or probable cause is one such ingredient, in the absence of which it does not appear that the plaintiff has been unlawfully disturbed.
Patteson, J. I think this declaration is bad, for the reason already given. The case is analogous to that of a complaint of malicious prosecution or arrest; and here, as there, the want of reasonable or probable cause ought to be alleged.
Williams, J. The averments in this declaration might be sustained by proof that the defendant, not being an attorney, had held a conversation with Thomas, and had said, “If your story is correct, you might sue Flight.” No action could be maintained on that, unless it further appeared that the now defendant knew that there was no right to sue the now plaintiff.
Coleridge, J. It is not asserted here that the suit maintained was without reasonable or probable cause: there are only general words, imputing an instigation and a stirring-up. There should be added to these, in strict analogy with actions for malicious prosecution or arrest, as my Brother Patteson has pointed out, an averment of want of reasonable or probable cause: and without such averment this declaration shows no right of action.
Judgment for defendant.[[408]]
GRAINGER v. HILL
In the Common Pleas, January 20, 1838.
Reported in 4 Bingham, New Cases, 212.
Tindal, C. J.[[409]] This is a special action on the case, in which the plaintiff declares that he was the master and owner of a vessel which, in September, 1836, he mortgaged to the defendant for the sum of £80, with a covenant for repayment in September, 1837, and under a stipulation that, in the mean time, the plaintiff should retain the command of the vessel, and prosecute voyages therein for his own profit; that the defendants, in order to compel the plaintiff through duress to give up the register of the vessel, without which he could not go to sea before the money lent on mortgage became due, threatened to arrest him for the same unless he immediately paid the amount; that, upon the plaintiff refusing to pay it, the defendants, knowing he could not provide bail, arrested him under a capias, indorsed to levy £95, 17s. 6d., and kept him imprisoned, until, by duress, he was compelled to give up the register, which the defendants then unlawfully detained; by means whereof the plaintiff lost four voyages from London to Caen. There is also a count in trover for the register. The defendants pleaded the general issue; and, after a verdict for the plaintiff, the case comes before us on a double ground, under an application for a nonsuit, and in arrest of judgment.