Sophia De Medina against Grove and Weymouth
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1847 |
| Date | 05 February 1847 |
| Court | Exchequer |
English Reports Citation: 116 E.R. 67
IN THE EXCHEQUER CHAMBER.
See note 10 Q. B. 152.
sophia de medina against grove and weymouth. Tuesday, February 5th, 1847 (a). Held by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench, that no action lies against an execution creditor or his attorney for issuing a fi. fa. indorsed to levy the whole sum recovered by a judgment which, to the knowledge of both, has been partly satisfied by payments unless malice and want of probable cause be alleged in the declaration, and proved. And quaere, by Wilde C.J., whether, even if such allegation and proof were made, an action is the proper remedy. [See note 10 Q. B. 152.] The plaintiff below brought error on the judgment in this case (see p. 152, 166-170, ante), so far as it regarded Grove and Weymouth. Error was assigned in the common form. Joinder. Lush, for the plaintiff in error. The judgment of the Court below puts the present action on the same footing with actions for malicious arrest on mesne process, or for malicious prosecution. But there is this difference; that, when the complaint is that execution has been issued for more than is due, the debtor's liability has been previously ascertained by judgment, so that the creditor cannot excuse himself on the ground of mistake, and his act is prima facie illegal; whereas, in other cases with which the present has been confounded, the complainant has merely been called into Court in order that his liability, whether civil or criminal, may be ascertained, an act prim ft facia legal, so that it must be charged to have been done maliciously and without probable cause, in order to negative the presumption of its legality. In [173] Saxon v. Castle (6 A. & E. 652), the declaration contained no averment of a scienter. In Scheibel v. FairMn (1 B. & P. 388), Page v. Wiple (3 East, 314), and Gibson v. Chaters (2 B. & P. 129), the complaint related to mesne process; and, in the first two cases, to mere non-feasance of that which the defendants were not required by law to do. In Grazer v. Pilling (4 B. & C. 26), the averment of malice might have been omitted, though it would have been necessary if the debtor had been in custody on mesne process. This view is fortified by Wentwvrth v. Sullen (9 B. & C. 840), where the declaration complained of an execution for more than was due on a cognovit, and contained no averment of malice. [Parke B. The...
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...v Joyce of the early recognition of the tort and the “ broad principle underlying the cause of action” [26]: [27] In De Medina v Grove 10 QB 172, 176 the judgment of Wilde CJ (with whom Maule J, Cresswell J, Williams J, Parke B and Rolfe B agreed) began: “The law allows every person to emp......
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...court was satisfied that the proceeding was set on foot to effect an object not within the scope of the process". 51 In De Medina v. Grove 10 Q.B. 172, at 175 Grainger v. Hill was again cited without adverse comment by the Court. 52 In Goldsmith v. Sperrings (1977) 1 WLR 478, Lord Denning, ......
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De Medina v Grove
...E.R. 67" class="content__heading content__heading--depth1"> English Reports Citation: 116 E.R. 67 IN THE EXCHEQUER CHAMBER.Sophia De Medina against Grove and Weymouth See note 10 Q. B. 152. sophia de medina against grove and weymouth. Tuesday, February 5th, 1847 (a). Held by the Court of Ex......