Rowbotham v. Pearce

10 Del. 135

• Court: Superior Court of Delaware
• Decided: July 5, 1876
• Status: Published

Opinion

The Court:

The demurrer, of course, admits all the material facts alleged in the several counts in the declaration. It admits the lease, which was in writing, and that, too, without the defendant alleging or pretending that it contained any terms of restriction as to the subletting of the premises by the plaintiff as the tenant of them. It also admits the facts alleged by the plaintiff that he was obliged by the annoyance and disturbance stated to remove with his family from them and to rent another house in the city at the close of the first quarter of the term; and that the plaintiff thereupon, as he had a legal right to do under such a lease, advertised them for rent, and could and would have sublet them at a rent of twenty-five dollars per month for the residue of the term (the same that he was to pay for them) had not the defendant wrongfully prevented him from doing so in the manner alleged in the first four counts; and in consequence of which, as he alleges and as is also admitted by the demurrer, he lost the benefit of obtaining the same amount of rent from them which he had to pay the defendant for them during the residue of the term. And such being the allegations and admissions on the face of the pleadings, the case as presented in the first count would import in law a constructive eviction of the plaintiff from the demised premises as the result of the wrongful acts and conduct of the defendant, and, of course, prima facie an indirect injury to him for which the action will lie. Billany v. Smith, 4 Houst. 116, 117. While it is equally clear that the facts alleged in each of the three succeeding counts and admitted by the demurrer that the plaintiff could and would have sublet the demised premises for the residue of the term but for the wrongful acts and the prevention thereof by the defendant in the manner stated, also import an indirect injury to the plaintiff committed without force by the • defendant, for which prima facie an action on the case will lie. Under the proceedings had for the recovery of the rent, and by' which the defendant recovered it for the whole term, the plaintiff had no means of availing himself of any of these matters by way of defense except on the return of the attachment to this court. But the fact that he did not then attempt to avail himself of any of the matters alleged, and particularly as alleged in the first count, by way of defense to the demand for rent for the residue of the term after his eviction from the demised premises does not bar his right to institute and maintain the present action. The ground of action, however, on which the fifth and last count is founded is different, inasmuch as it is for an alleged false and malicious proceeding by the defendant without probable cause or good grounds to believe that the plaintiff intended to remove his effects from the county, or otherwise dispose of the same, and would so remove or dispose of them before the rent would become due so as to defeat a distress for it, under the provisions of the statute for the attachment and security of the rent in1 such case made and provided. Rev. Code Amend., chap. 120, sea. 52, p. 714. But notwithstanding it was a resort to legal process, and was prima facie for a lawful and proper purpose, yet if the allegations of the plaintiff in this case be admitted, as they unquestionably are by. the general demurrer to this, as well as the other counts, that it was ■ falsely and maliciously instituted by the defendant without probable cause or good reason to believe that the plaintiff intended to do so, and that it was not done for the purpose of securing the rent when it should become due, but thereby maliciously to annoy, injure, and oppress the plaintiff, it was on the principle which lies at the foundation of all actions at law for malicious suits and prosecutions without probable cause, an abuse and perversion of the process and proceeding provided for in the statute for which the action in this case will lie.

Patterson, for the plaintiff. Whitely, for the defendant.

Judgment must therefore be entered on the demurrer in favor of the plaintiff and against the defendant upon all the counts in the narr.