4 SCL 72 - Dawson v. Tunno

¶110th May, 1806.

Trezevant, J.,

¶2delivered the unanimous opinion of the court, that in this case the plaintiff had not used due diligence to receive the money due on Sanders’ bond, and, therefore, from the evidence produced at the trial, was not entitled to the verdict, which the jury had rendered in his favor. It appears, manifestly, that the plaintiff did not avail himself of all the legal means in his power, and make a seasonable and proper use of them, in order to obtain payment of the bond, In particular, he omitted to sue out a ca. sa. Although this may not be necessary in every case, yet it must be regarded as necessary in every case, where, by possibility, it might prove effectual, or answer the purpose ; and it might have done so here, for any thing that appears to the contrary.

¶3Motion granted.

Note. If A. sue B. in a proper court, if his suit be without ground of truth, and that certainly known to himself, B.may have ease against him for the undue vexation and damage. But there must be a damage, either already fallen on the party, or else inevitable. Hob. 006. But in general, it is not actionable to bring a civil action, though there be no good ground for it, because it is a claim of right, and the plaintiff finds pledge to prosecute, and is amercible pro falso clamors, and is liable to costs. Bull. N. P. 11.