Cross v. Elliot

Peters, J. The defendant sued the plaintiff in an action of case, had his personal property attached, procured the same to be sold on the writ, and failed in the suit. But he did no wrongful act. All that was done was legal. All the penalty that he is required to pay is the costs. This is an action of trover for the property attached. It cannot be maintained. The plaintiff (defendant in that action) may have been put to loss and inconvenience. He might have been, if no property had been attached. It involves expense to commence or defend a law suit. The injury sustained in such case is damnum absque injuria. The law assumes that, all things considered, the taxable costs shall indemnify the prevailing party for his expenses and losses in the litigation. Otherwise, men could not upon reasonable risks go into the courts. Of course the officer who sold the property must [389] restore its proceeds to the owner. And the defendant might be liable to an action for malicious prosecution if the facts were of a character to sustain such an action. White v. Dingley, 4 Mass. 433. Lindsey v. Larned, 17 Mass. 190. Vanduzo v. Linderman, 10 Johns. 106. Bigelow’s Cas. on Torts, 206. See remarks of Weston, C. J., in 13 Maine, 259, (Freeman v. Cram). Plaintiff nonsuit. Appleton, O. J., Walton, Barrows, Danforth and Libbey, JJ., concurred.