White v. Dingley

4 Mass. 433

Opinion

The opinion of the Court was afterwards delivered by

Parsons, C. J.

We are satisfied that this action cannot be maintained. The forfeiture of the debt is not in the nature of a penalty, but is a liquidation of the damages to be paid in case of a breach of the covenant on the part of the creditor. The parties have made their contract, and we have no authority to alter it, or to make another for them in its stead.

No action, by the common law, lies for damages sustained by suing a civil action, when the plaintiff fails, unless it be alleged and shown to be malicious, and without probable cause.

Defendant’s plea good.