Springer v. Wise

2 Disney (Ohio) 391

• Court: Ohio Superior Court, Cincinnati
• Decided: November 15, 1858
• Docket: No. 9,500
• Status: Published

Opinion

Spencer, J.

It is claimed the property of the plaintiffs was attached, and that they received injury to their business, in consequence of the malicious procedure of the defendants. No action lies against a party for the bringing of a vexatious civil suit, to authorize a recovery. There must have been an arrest of the defendant in the action, or some special injury arising to. his property. It is well established that if an individual, on an execution, takes the property of another, when on a prior execution his judgment has been satisfied, an action will lie for the vexatious prosecution of the writ. But the malice in that case is the gist of the action, and special damage must be averred. But for the causeless bringing of an action, where no special injury arises to a party, the costs of the action in which he recovers are supposed to compensate him for his loss. Where there has been a seizure of the person or property in an action, brought vexatiously, without probable cause, and- for the purpose of harassing the defendant, the latter may recover at common law for the special damage he may have sustained. To sustain such an action, it must appear that either his person or his property has been seized, and that the action was without reasonable or probable cause, and vexatiously or wrongfully instituted.

Now, how near does the petition in this case conform to these requisites?

All the facts may be true, as averred here, and the plaintiffs in the action in Missouri may not have been guilty of a vexatious proceeding, or one without reasonable or probable cause. It is not enough to aver in a petition of this kind that the party had no cause of action, or that the notes averred to be the cause of action, were not the property of the party bringing it. The averrment should be specific, that the suit was brought without reasonable expectation of maintaining it.

It has been claimed that the malice of the agent might be imputed over to the principal. As a general rule, that is not so: it is not imputed to him. Unless he directed the act to be done he is not liable for the malicious wrongs of an agent, acting without the proper scope of his duty.

The demurrer is well taken, and must be sustained.