In action sur case tried in Middlesex the sitting after the last term on taking forth an attachment of privilege against the plaintiff; and to the intent he should not put in bail, be affirm’d to the baily of Westminster that his cause of action was 600li. falsely arid malitiously, ubi revera, he had cause onely of 40li. the defendant pleaded that he had cause of action to 200li. absque hoc that he affirm’d he had cause of action to 600li. on which issue, after verdict pro plaintiff, Winnington moced in arrest of judgment that no action would lie in this case on the reason of Dawson against Read, an action sur case for suing fieri facias, and levying goods after judgrnent satistied ; and by the opinion of the Lord Bridgman, and the Barons at Serjeants Inn on error after judgment in B. R. on verdict of 700li. the judgment was reverst, because the suing execution was a lawful act, and so it’s here, and the sheriff is to inform himself of the cause of action ; and here it appears there was a good cause of action, therefore the faux information to the baily is no cause of action. Jones pro plaintiff; Here is a wrong apparent, arid the writ in C. B. doth never express the cause of action, therefore the information to the sheriff is the direction ; and the sheriff hath no means to find whether there be any cause of action: and the case of Read and Dawson was grounded on the remedy given by law for suing action without cause ; but here is no remedy by costs or amerciaments, for a cause of action is confest, and this is a falsity in his own knowledge, and the jury have found it falso and rnalitiose, the Court agreed no action would lie for arresting a man without cause, by reason all may sue forth the King’s writ; but as the case of Don Cardendo, a high charge to prevent bail without cause of action, is cause of action sur case, being a collateral matter for which no remedy can be had otherwise ; and the only evidence here is the falso and malitiose, which being found, it’s sufficient, as Osbom’s case adjudg’d here last term; and unless this be admitted, great mischief would ensue, and per Curiam judgment pro plaintiff, and the like in the case of Skinner and Gunton.
Citations:
[1685] EngR 900, (1685) 2 Keb 546, (1685) 84 ER 342 (D)
Links:
Citing:
See Also – Daw v Swaine 1714
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Torts – Other
Updated: 02 May 2022; Ref: scu.397675