Collins v. Campbell

31 A. 832, 18 R.I. 738, 1894 R.I. LEXIS 90

Opinion

Per Curiam.

We think the demurrer to the declaration in this case should be sustained. The declaration nowhere alleges, except in an argumentative way, that the malicious proceeding of which the plaintiff complains had terminated in his favor before the commencement of this action. In Lauzon v. Charroux, ante, p. 467, which is relied on by the plaintiff’s counsel in support of the declaration, it was held in accordance with the well settled rule in such cases that in order to entitle the plaintiff to recover in an action of this sort, ‘ ‘ three tilings must concur, viz., 1, the motive of the party instituting or prosecuting the suit or proceeding must have been malicious; 2, the suit or proceeding complained of must have been instituted without probable cause ; and 3, the suit or proceed- i-ng must have terminated in the plaintiff’s favor,” and also that the declaration must contain allegations covering each of these' points. See also King v. Colvin, 11 R. I. 582; Newton v. Weaver, 13 R. I. 617; Gorton v. De Angelis, 6 Wend. 418; Clarke v. Cleveland, 6 Hill, 344.

Albert B. Crafts & Charles Perrin, for plaintiff. James E. Denison, for defendant.

Demurrer sustained.