<p>This was an action for a malicious civil suit. The plaintiff declared in his second count, that he was the owner of a schooner called the Mercury, which schooner was, on the 10th of September, 1822, at Prince’s Island, on the coast of Africa, and that one John H. Swift shipped on board the Mercury, among other goods, a parcel of ivory, all which goods the master of the vessel, by a bill of lading, promised to deliver to J. H. Swift, or his assigns, at the port of Newburyport or Boston, — by means of which promise the plaintiff became bound to deliver the goods to J. H. Swift, or his assigns, or legal representatives duly authorized to receive ihe same, and to no other person whatsoever; that on her arrival in the United States, the defendant, without any claim, title or color of right as the owner of the ivory, or as the assignee or legal representative of J. H. Swift, demanded of the plaintiff that he should deliver to him the ivory shipped by J. H. Swift, together with other ivory, the property of the plaintiff, and upon the plaintiff’s refusal, the defendant, in order to compel the plaintiff to comply with his unjust demand, and maliciously intending to vex, injure and oppress the plaintiff, and without any reasonable or probable cause of action, purchased a writ of attachment against the plaintiff, and on the 2d of December, 1823, caused the schooner Mercury, together with all the ivory shipped by J. H. Swift, and also a large quantity of ivory belonging to the plaintiff, to be taken and attached, and to be detained' in the hands of the sheriff a long time, viz. three months ; that at the court to which the writ was returnable, the defendant, well knowing that he had no probable cause of action, did not enter the same, but discontinued it; ¿tnd that by means of the causeless and malicious suit so commenced, and of the attachment, the plaintiff had been put to great trouble and expense, Stc.</p> <p>In the third count the plaintiff stated, that the defendant, as assignee of J. H. Swift, claimed to receive a certain quantity of ivory, whereas by the bill of lading he was not entitled to receive so much ; that the plaintiff was always ready to deliver the whole quantity specified in the bill of lading, to J. H. Swift or his assigns, he or they first paying the freight; that the defendant, without having paid or offered to pay the freight for any part of the ivory, and without any just or probable cause of action against the plaintiff, but maliciously intending to vex and injure him, caused the schooner Mercury &c. to be taken and attached by the sheriff, and to be detained &c. [as in the second count.]</p> <p>The action was tried before Putnam J.,.upon the general issue, and a verdict was found for the plaintiff.</p> <p>The defendant moved for a new trial, because he contended on the trial, that he had competent authority to claim the property in question and to institute an action for it, without subjecting himself to an action for a malicious suit, upon the following grounds : — 1. That he had himself paid for the whole property in an outward cargo, the proceeds of which were invested in the return cargo, consisting of the ivory in question and other articles mentioned in the bill of lading, and he was the surviving owner of the several persons whom he had admitted to a joint concern in the property, viz. his son J. H. Swift, and one Allen, according to an agreement which was in the case. 2. That the defendant was the assignee of the bill of lading in virtue of the delivery of it to him, and a letter of J. H. Swift to him accompanying the bill of lading. [In this letter J. H. Swift says : — “I should advise you to get the insurance done in this way, — whatever cargo may be shipped in schooner - Mercury.”] 3. That he was the heir at law of his son J. H. Swift. And 4. that toe plaintiff never objected to the defendant’s authority in the case, and ought not now to deny such authority, because he had admitted it by a delivery of all tire articles of merchandise, except the quantity of ivory in question, as well as by his other acts in relation to the transaction.</p> <p>The plaintiff’s counsel moved at the trial, that the jury should be instructed, that if the defendant believed he had a probable cause of action at the time when he sued out his original writ against the plaintiff, and was afterwards informed and verily believed, in consequence of the advice of Mr. Warren, a counsellor of this Court, that he had no cause of action, and he afterwards continued to detain the property under attachment for an unreasonable length of time, and the suit was in fact groundless, this action was maintained. [Mr Warren deposed, that in December 1823, the defendant called upon him for advice and assistance in an action which he (the defendant) had then lately commenced against the present plaintiff, and that upon learning that J. H. Swift was the person named in the bill of lading as consignee of the goods, and that J. H. Swift had never formally assigned his anarent interest to Asa Swift the defendant, he (Warren) stated to the defendant that the action could not be maintained, and that he had better stop it immediately ; at whicn the defendant expressed much surprise, and insisted, that as the property in fact belonged to him, and a bill of lading had been enclosed in a letter to him from his son, he could sustain the action. Warren advised him, however, as his son was probably deceased, to take out letters of administration, and Warren wrote for him a representation to the judge of probate for that purpose.]</p> <p>Putnam J., who tried the cause, reported that there was no evidence that the defendant was the sole heir of J. H. Swift; that he instructed the jury, that the defendant had not by law a right to maintain an action in his own name for the property mentioned in the bill of lading, as surviving owner, or as assignee in virtue of the delivery of the bill of lading ; and that the delivery of part of the property mentioned in the bill of lading did not amount to a waiver of the plaintiff’s right to contest the defendant’s authority to maintain the action in his own name for the residue. Ii these instructions were wrong, a new trial was to be granted.</p> <p>And in regard to the plaintiff’s motion, the judge instructed the jury, that if Swift, at the time when he purchased his writ against the plaintiff, knew that he had no cause of action whatsoever, the law would imply that he acted maliciously ; but that if he believed that he had a just and legal claim against the plaintiff, and procured his writ of attachment for the purpose of enforcing it by lawful process, he was not liable to this action, because the form or the kind of action in his suit was mistaken by his counsel, or because on trial he should, fail to support his suit; that the facts proved in the deposition of Mr. Warren might be taken into consideration in connexion with the other testimony tending to prove that the defendant knew that he had no probable cause of action when he commenced his suit, and acted maliciously, but that those facts would not alone warrant the jury in finding a verdict for the plaintiff, if upon the whole evidence they believed that the defendant supposed he had a just and legal cause of action when he sued out his writ, and that bis suit was commenced for the purpose of enforcing it, and not maliciously to vex and oppress the plaintiff.</p>
