Donlan against Brett
| Jurisdiction | England & Wales |
| Judgment Date | 24 November 1829 |
| Date | 24 November 1829 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 395
IN THE COURT OF KING'S BENCH.
10 B. &C.118. DONLAN V.BRETT 395 donlan against brett. Tuesday, November 24th, 1829. In order to entitle a defendant to his costs under the statute 43 G-. 3, c. 46, s. 3, on the ground that the plaintiff had arrested him for a larger sum than he afterwards recovered, it is sufficient to shew that the plaintiff had no reasonable or probable cause for procuring the defendant to be arrested for that sum; it is not necessary to shew malice. In this case the plaintiff had arrested the defendant for 5751., and recovered at the trial 891. 7s. 6d. only. A rule nisi had been obtained by Hutchinson for allowing the defendant his costs, pursuant to the statute 43 Gr. 3, c. 46, s. 3. It appeared by the plaintiff's affidavit in answer to the rule, that the defendant was indebted to him, exclusive of the sums recovered at the trial, in 4001., being the balance remaining unpaid of the purchase-money for the next presentation of a living bargained and sold by the plaintiff to the defendant on the 17th of July 1828, which the defendant had repeatedly promised to pay, and in other sums amounting to near 901., for which the plaintiff held receipts signed by the defendant, but which being unstamped, could not be produced in evidence. Platt now shewed cause. Assuming that the 4001., the balance due for the next presentation of a living bargained and sold (that bargain and sale not being shewn to be by deed), did not constitute a debt for which an action might be maintained, and that the plaintiff had no probable cause for arresting the defendant for that sum; [118] still it is quite clear that the facts disclosed in the affidavit would be amply sufficient to negative malice in any action brought against the plaintiff for maliciously arresting the defendant for a larger sum than he ought. In Sihersides v. Bowley (1 B. Moore, 92), the plaintiff had holden the defendant to bail, and a verdict was taken for him at the trial, subject to an order of reference for ascertaining the amount of the damages, and the arbitrator awarded a less sum than 151. The Court of Common Pleas, upon application, refused to allow the defendant his costs pursuant to the statute; and Dallas C.J. laid it down, that, in order to entitle a defendant to his costs under the statute, he must shew that the arrest was vexatious and malicious, and Lord Ellenborough C.J., at chambers, always put the same construction upon...
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