Kramer v. Stock

The opinion of the court was delivered by Sergeant, J. There does not seem to be laid in this declaration a sufficient ground for the maintenance of an action. The refusal of the money by the defendant, when tendered by the plaintiff, was an act which he might or might not do at his peril, there being no law to oblige him to take it, further than that he would lose the interest and costs of suit, if the plaintiff properly availed himself of his defence in the aetion to be brought against him before the magistrate. For by the act of 1705, sect. 2, in all cases where a tender is made, and the party to whom it is made refuses the same, and yet afterwards sues for the debt, the plaintiff shall not recover any costs of suit. Instead, however, of releasing himself by this course, the defendant denied the debt before the magistrate, and even appealed from his judgment, thereby causing a useless and protracted litigation, and involving himself in costs. It is very true, the conduct of the defendant seems to have been wanton and vexatious; but an action does not lie for every vexatious and malicious act by one man against another. Were it so, it is to be feared that our courts would abound with infinitely more suits than they do at present, and would be the arenas of never ending jars and recriminations, on matters comparatively of minor importance to society. In former times, when continental money was a legal tender, the debtor followed his flying creditor, hunting him down with as little mercy as the creditor, after the return of peace, pursued the debtor. 9 Serg. & Rawle 267. Yet we do not find any action brought on that account. To sustain an action on the case, it is necessary that the party should have committed an illegal act, from which positive or implied damage ensues. Thus, to say A is a bastard, and I am the heir, is not actionable, because he is a party concerned, and asserts a right. Aliter, if he had not added, “ and I am the heir.” — 118 — Savil v. Roberts, Salk. 14. So in an action for a malicious prosecution, it is a good defence if the defendant had probable cause, because in that case the law justifies the proceeding, however malicious may have been the motives of the defendant. So to bring an action, though there be no good ground, is not actionable. Ibid. But if one abuses the process of the law, as by maliciously holding to bail, an action lies. So wantonly to levy a second execution, after a former levy, or for a larger sum than is due, or after the debt has been paid, have been held actionable — for all these are illegal, and damage is thereby sustained. But here the defendant recovered in his suit, and there is no pretence whatever, therefore, for a suit against him on this ground. Then as to the grievance stated, of the plaintiff being summoned before a magistrate out of his own township, and at the distance of thirty miles from his residence, there was nothing contrary to law in that. The acts of assembly permit it, and, if wrong, it can be altered only by an act of the legislature. There is probably great difficulty in devising a system on the subject which would be free from inconveniences to one party or the other. At all events, we must abide by the law as it is, and the plaintiff cannot recover damages against the defendant for doing a legal act. Judgment affirmed.