Weaver v. Page
Before: Terry
Synopsis
Where the second of a set of bills of exchange was presented and protested owing to the absence of the drawee, and the first of exchange arrived nine days after, and was paid together with costs of protest of the second, and two months after, suit was commenced on the protested bill; Held, that in an action for malicious prosecution of said suit, the question whether the plaintiffs in the suit on said bill knew that the bill was in fact paid at the time when they commenced suit, was a question for the jury.
The fact that the bill by the usual conveyance reached its destination within a month from its date, was sufficient to raise a presumption that defendants had received' notice of payment in double that time.
And where the suit on the bill had been accompanied by an attachment, under which the property of the drawer had been held for four months, when it was released by giving bond; Held, that in an action by the drawer for the malicious prosecution of said suit, where the jury gave $15,000 damages, and where no misconduct was shown , >on the part of the jury, and it was not charged that the verdict was given under the influence of passion or prejudice, the Court could not disturb the verdict, unless it clearly appear that injustice has been done.
In such cases there is no fixed rule as to the amount of damages; the jury are not confined to the actual pecuniary loss, but may take into consideration the character and position of the parties, and all the circumstances of the case.
The opinion of the Court was delivered by Mr. Justice Terry. Mr. Chief Justice Murray concurred.
This is an action to recover damages against defendants, for the malicious prosecution of a civil suit against the plaintiff.
The plaintiff, at San Francisco, on the 27th of July, 1853, drew a set of bills of exchange in favor of defendants, on one Weaver, of Columbus, in the State of Ohio. The bills were sent, according to the usage of trade,—one by each of the usual routes of travel. The second of exchange was presented at the place of payment on the 27th of August, and the drawee being absent, was duly protested and returned to the defendants. The first of the set arrived at the place of payment on the 5th of September; was presented to the drawee, and was paid by him, together with the costs of the protest. Two months afterwards a suit was instituted on the protested bill by defendants, and plaintiff’s property taken in attachment and held for about four months, when it was released, by his giving a bond to answer the judgment. In that case, upon the trial, a judgment was rendered for defendant, (the present plaintiff) and the judgment having been affirmed on appeal, the plaintiff instituted this action, and recovered, in the Court below, a judgment for fifteen thousand dollars.
The main question in the case was, whether the defendants, at the time of commencing and prosecuting this suit against the plaintiff, and holding his property under attachment, knew that the bill, which was the foundation of the action, was paid. This being a question of fact, was properly left to the jury, who found in favor of plaintiff, upon evidence amply sufficient to sustain the verdict. The fact that the bill, by the usual conveyance, reached its destination in one month from its date, was sufficient to raise a presumption that defendants had received notice of payment in double that time.
The advice of counsel, relied on by defendants, appears from the record only to have been given in relation to a claim for damages on account of the protest, and not to the entire claim.
The fact that defendants had a probable cause of action, arising from the protest of the second of exchange, is no defence. If a person having a good cause of action against another, willfully sue for a much [685]greater amount than is due, and attach the property of the other, and put him to charges, he is liable. 16 Pick., 458.
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