Mann v. Holbrook

¶1The-opinion of the court was delivered by

¶2This is a demurrer to a declaration, in which the plaintiff in substance alleges, that the defendant sued out a writ against him, returnable before a justice of the peace, and then omitted to enter it, or to appear and obtain a continuance, or to proceed with the suit in any mode.

¶3This court, upon the present circuit, held, that in such a case, where the plaintiff positively suppressed the writ, he was liable to an action on the case for all costs incurred by the defendant in preparing a defence to such suit.* That, in principle, is the same as the present case. The gist of the action is, that the defendant sued out a writ, which he neglected to prosecute, whereby the plaintiff was put to expense and loss. Whether he behaved with more or less of malice, or wantonness, or positive wrong, is not material. If he were guilty of a neglect of duty, whereby the plaintiff sustained loss, he is liable in this form of action, if the register affords no other remedy. If the defendant has any sufficient excuse, he may show it by plea, or by proof upon the general issue.

¶4*525It may be said, that this case conflicts with that of Stevens v. Wilkins, 8 Vt. 230. If so, I cannot regret it; for I never very well comprehended the justice of that decision, but was told at the time by older and more experienced judges, that such had been the general view of the profession, and, among others, of the late Nathaniel Chipman, — whose opinions have long been regarded with great respect by this court, — and so I acquiesced in the decision.

¶5Judgment afBrmed.