Grainger v Hill
| Jurisdiction | England & Wales |
| Judgment Date | 20 January 1838 |
| Date | 20 January 1838 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 769
IN THE COURT OF COMMON PLEAS
S. C. 5 Scott, 561; 7 L. J. C. P. 85. Applied, Parton v. Hill, 1864, 10 L. T. 415.
[212] grainger v. hill and another. Jan. 20, 1838. [S. C. 5 Scott, 561; 7 L. J. C. P. 85. Applied, Parton v. Hill, 1864, 10 L. T. 415.] 1. Placing a party under restraint of a sheriff's officer who holds a writ of capias, is an arrest, without proceeding to actual contact.-2. In an action for abusing the process of the Court in order illegally to compel a party to give up his property, it is not necessary to prove that the action in which the process was improperly employed has been determined, or to aver that the process was sued out without reasonable or probable cause. The declaration stated, that the Plaintiff, before the time of the committing of the grievances by the Defendants hereinafter mentioned, was master and proprietor of a certain smack or vessel hereinafter mentioned; and the Plaintiff being such proprietor, and having occasion to borrow a certain sum of money to meet his occasions, applied to and requested the Defendants to lend and advance to him the sum of 801., which they, the Defendants, agreed to do, upon having the repayment thereof secured to them by a mortgage of the said smack or vessel; and it was thereupon agreed by and between the Plaintiff and Defendants, that a mortgage of the said vessel should be C. P. x,~25 770 GRAINGER V. HILL 4 BING. (N. C.) 213. accordingly made and given; and that the sum of money so to be advanced and lent by the Defendants to the Plaintiff should afterwards be repaid by the Plaintiff to the Defendants on a certain time then agreed upon, and not yet elapsed, to wit, the 28th of September 1837 ; and that in the mean time the Plaintiff should retain the command of the said smack or vessel, and prosecute and make voyages therein for his own profit and advantage: and thereupon, afterwards, to wit, on the 30th of September 1836, the Defendants accordingly lent and advanced to the Plaintiff, upon and in pursuance of the said agreement, and upon the security aforesaid, the said sum of 801.; and the Plaintiff also thereupon, in pursuance also of the said agreement, by a certain indenture then made, signed, sealed, and delivered by the Defendants of the one part and the Plaintiff of the other part (the indenture was here set out), mortgaged the said vessel, subject to a proviso of redemption on payment of [213] 801., together with interest for the same in the meantime, at and after the rate of 5 per cent, per annum, on the 28th of September 1837, then and now next ensuing; and the Plaintiff did, in and by . the said indenture, covenant, promise, and agree to and with the Defendants, that the Plaintiff should well and truly pay, or cause to be paid, to the Defendants the said sum of 801., with interest for the same, after the rate aforesaid, at or on the day arid time therein and hereinbefore expressed and appointed for payment of the same. That the Defendants wrongfully, illegally, and maliciously contriving to injure, harass, and distress the Plaintiff, and to compel the Plaintiff, by and through fear and duress of imprisonment, to give up and relinquish to them certain goods and chattels of and belonging to the Plaintiff, and not included in the said mortgage security, to wit, a certain register and a certain certificate of the register of the said smack or vessel, and without the possession of which the Plaintiff could not go to sea or prosecute his said voyages in manner aforesaid as agreed upon by and between the Plaintiff and Defendants, as the Defendants well knew, long before the said time so appointed as aforesaid for the payment of the said sum of 801., to wit, on, &c., called upon and requested payment of and from the Plaintiff of the said sum of 801., and then threatened to arrest him for the same unless he immediately paid to them the amount thereof. That, upon the Plaintiff's refusing so to do, the Defendants wrongfully and unjustly contriving and intending as aforesaid, and to imprison, harass, oppress, injure, and impoverish the Plaintiff, and to cause and procure him to be arrested and imprisoned, and to prevent his making and prosecuting any voyages whatsoever in his said smack or vessel,.and wholly to ruin the Plaintiff thereby, well knowing that the Plaintiff was wholly unprepared and unprovided with bail, heretofore, [214] to wit, on the 26th of November 1836, falsely and maliciously caused and procured to be sued arid prosecuted out of the Court of our Lord the King of the Bench at Westminster, for the said sum of 801., a certain writ of our Lord the King called a capias; (setting it out). That the Defendants, contriving and intending as aforesaid, afterwards, to wit, on, &c., wrongfully, illegally, and maliciously caused and procured the said writ to be, and the same was then marked and indorsed for bail for 951. 17s. 6d., being the sum of 801. and certain alleged costs, charges, and...
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