Gilding v Eyre and Another
| Jurisdiction | England & Wales |
| Judgment Date | 08 July 1861 |
| Date | 08 July 1861 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 584
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 31 L. J. C. P. 174; 5 L. T. 136; 9 W. R. 946. Adopted, Parton v. Hill, 1864, 10 L. T. 414.
[592] Gr[LDiN v. eykk and another. July th, 1801. [S. C. 31 L. J. C. P. 174; 5 L. T. 136; 9 W. R. 94(i. Adopted, 1'artuit v. Rill, i 1804, 10 L. T. 414.] The declaration stated that the defendants (the one, A., acting as attorney for B., the other) recovered a judgment against the plaintiff for 301. 7s. 4d., that the plaintiff paid and satisfied to 13. the debt recovered by such judgment except the sum of 1.5s. 8d., and that the defendants sued out a ca. sa. upon the judgment, and wrongfully and maliciously, and without any reasonable or probable cause, indorsed the said writ with directions to levy 51. 14s. 8d., and interest, and 11. 7s. for the costs of execution; that the plaintiff tendered and offered to pay to the defendants 31. 8s., which was sufficient to pay and discharge all that was recoverable against the plaintiff upon the judgment arid writ, together with the costs of the writ of execution and all other legal aticl incidental expenses; and that the defendants wrongfully and maliciously, and without any reasonable or probable cause, procured the sheriff to arrest the plaintiff, and detain him until he paid 71. Os. 9d., wliereas 31. 8g. and no more was due and owing from and recoverable against tho plaintiff upoti the said judgment: -Held, on demurrer, that the declaration disclosed a good cause of action, and that it was not necessary for the plaintiff' to 10 C. B. (N. S.) S9B, UILDINU V. KYRK 585 allege that he had obtained his discharge by order of the court or a judge, so as to shew that the proceedings had terminated in his favour. The declaration stated that the defendants, at the time of the committing of the grievances thereinafter mentioned, were attorneys, and carried on business as such as copartners, and the defendant G. L. P. Eyre, by the other defendant as his attorney, commenced and prosecuted an action against the now plaintiff'in the court of Queen's Bench at Westminster, for recovery of a certain debt alleged to be due from the now plaintiff to the said Cr. L. P. Eyre; and such proceedings were had in the said action that the said defendant on the 16th of November, 1859, by the consideration and judgment of the said court, recovered against the now plaintiff a certain debt or sum of 301. 7s. 4(1.; and the now plaintiff afterwards, and before the committing of the grievance thereinafter next mentioned, paid and satisfied to the said (Jr. L. P. Eyre all the amount of the said debt so recovered by the said judgment, except the sum of 15s. Hd. : That the defendants afterwards, on the llth of December, I860, caused and procured a certain writ of capias ad satisfaciendum to be issued out of the said court o Queen's Bench in the said action upon the said judgment, directed to the sheriff of Middlesex, commanding the said sheriff' to take the plaintiff and him safely keep to satisfy the defendant the said debt of :iOl. 7s. 4d., together with interest upon the sum of 51. 14s. 8d. at the rate of 41. per cent, per annum from [593] the said 16th of November, 1859, and wrongfully and maliciously, and without any reasonable or probable cause, indorsed the said writ with directions to levy more than the said sum of 15s. 8d., file part of the said debt of 301. 7s. 4d. so remaining due as aforesaid, that is to say, with directions to levy 51. 14s. 8d., and interest thereon at 41. per cent, per annum from the 16th of November, 1859, and also 11. 7s. for the costs of execution, besides officer's fees and all other legal and incidental expenses, and delivered the said writ so indorsed to the said sheriff, to he executed in clue form of law: That afterwards, and before his arrest thereinafter mentioned, he, the plaintiff', tendered and offered to the defeudtmts, and ottered to pay to the defendants, the sum of 31. 8s., aad which said sum of 31. 8s. was sufficient to pay and discharge all that was recover able against the plaintiff' upon the said judgment and writ, together with the costs of the said writ of execution and all other legal mid incidental expenses : Yet the defendants wrongfully and maliciously, and without any reasonable or probable cause, caused and procured the said sheriff', under the said writ, and within his bailiwick, to take and arrest the plaintiff' by his body, and the said sheriff accordingly took the plaintiff' by ihis body, and imprisoned him, and the plaintiff' was imprisoned and detained in prison under the said writ to satisfy the defendant the moneys so indorsed ofi the said writ and thereby directed to be levied, for a long space of time, and until he the plaintiff' was forced and compelled by the defendants, in order to procure his discharge from the said imprisonment, to pay to the defendants the sum of, to wit, 71. 6s. 9d., whereas, at the several times* of the said suing out, indorsing, delivering, taking, imprisoning, and detaining in prison, a much lesser sum than the said sum of 71. 6s. 9d., to wit, the sum of 31. 8s. and no more, was due and owing from the plain-[594]-fcift" and recoverable against him upon the said judgment and writ, and the plaintiff was always from the time of making the said tender, at the time of his said arrest, and during all the time of his detention, ready to pay the defendants the said sum of 31. 8s.; and the plaintiff', by reason of the premises, was necessarily put to and incurred divers costs and expenses during his said detention, for officer's fees for searching for other executions, and for other expenses, in obtaining his discharge...
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