The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-11-05
OPINION OF THE COURT BY
HARTWELL, c. j.

claimed.
OPINION OF THE COURT BY
HARTWELL, c. J.
The defendant, as executor, having
brought an action against the plalntlIf
| to recover the sum of 1854 payable for
rents. taxes and water rates on lease
| from the decedent and having obtained
an attachment of the plaintlHs col
| lection of stamps on the ground, aver
| red in his complaint, that the plaintiff
was about to remove his property from
the Jurisdiction of the court with the
intent to dispose of the same in fraud
| of his creditors the attachment was
dissolved on the plaintiffs motion, by
consent of the defendant who SUISSE
ouently discontinued the action ac-
knowledging receipt from the defend
ant of all sums claimed in said cause
| The plaintiff then brought this action
| To recover damages alleged to have
been received by him in consequence
Of the former action, averring IN MS
complaint that the defendant in his
complaint in that action talsely,
fraudulently and mahciously deposed"
that the plaintiff was about to remove
his property with the intent to dispose
of it in fraud of his creditors, and that
| in signing swearing to and filing his
complaint he acted with deliberate
malicious intent and purpose and With
| out probable cause, and with malicious
| intent to subject plaintiff to the sus-
picion, scorn, odium and contempt OF
his neighbors and acquaintance and
of the public in general and TO inJure
and destroy the plaintiffs credit and
official standing; that the defendant
complaint prayed for process of con-
straint to issue against the plaintin
property and that in pursuance OF
said prayer and of said complaint
the defendant caused and procured the
issue of the writ and order of attach
ment of the stamps and thereby
caused and procured the stamps to be
attached: that the attachment has
been dissolved and the matter of the
attachment absolutely determined
and ended in favor of this plaintiff.
Upon the overruling of defendants
demurrer to the complaint for mis-
ioinder of causes of action and on the
ground that several causes are Joined
together without being separately sta
ted he answered with general denial
and the cause went to trial resulting
in a verdict for the plaintiff for $500.
The defendant excepted to the over
ruling of his demurrer, to rulings con-
cerning evidence, to the denial of his
motion for a nonsuit on the ground
that the undisputed evidence mega
tived the allegation of want of prob
able cause, to instructions given and
refused, to the verdict as contrary to
law, the evidence and weight of evil
dence and on the ground of excessive
damages, and to the denial Of his mo-
ton for a new trial upon the grounds
on which the verdict was excepted to
and for errors in rulings to which ex-
ceptions had been taken and allowed.
Considering first the exception to the
overruling of the demurrer, if the COM
plant is regarded as brought for ma
licious prosecution it is demurrable for
absence of averments that it was
brought maliciously and without prob
able cause and that it terminated in
the plaintiffs favor.
But even the courts which hold
that an action lies If no other injury |
is done than to Yex and annoy a de- |
PENDANT and cause him the expense of |
engaging counsel uniformly hold that |
the suit complained of shall terminate |
In favor of the defendant before he |
can bring an action against the plain |
tiff for its malicious prosecution.
THE reason for this requirement is |
yariously stated. 1t is not until the |
suit is ended that it can be judicially |
ascertained whether 1t is justifiable or |
brought in malice and without prob
able cause. Malice alone is not enough; |
there must also be want of probab bile
cause for bringing the action to make
one liable for its malicious prosecu-
ton Wilcox V. Berrey. 16 Haw. Il.
The court instructed the jury, This
is an action for malicious prosecution"
and it is so termed in the plaintiffs
brief, although in response to ques-
.inrn = +ha rNt1r- during the rcy11r14A1f |