#### JOHN DAVENPORT v. JONATHAN LYNCH, et. al.

A conspiracy to vex and harrass a person, by having him subjected to an in-qnisition of lunacy without any probable cause, is actionable.

Professional advice is only evidence to rebut the imputation of malice, and where that is expressly proved, it does not palliate at. all.

This was an actioN on the cask, tried before Mault, J'., at the Spring Term, 1859, of Rutherford Superior Court.

The plaintiff declared:

1st. “The defendants maliciously sued out inquisitions of lunacy against the plaintiff.”

2ndly. “Eor conspiring together, and suing out process to to have plaintiff’ declared a lunatic, with a view, and for the purpose of coercing him to make a different disposition of his. property from that which he willed.

3rd. Or of acting on the public mind, and- defeating the ultimate probate of his intended will.

The defendants were grand-children, and it appeared that they had conceived a strong dislike to "William Davenport, who lived with the plaintiff, whoso will was made the sub-, ject of comment in thi.$ suit.

"William Davenport was a grand-son of the plaintiff,' and' and the defendants were also grand-children; audit appeared that the defendants were also, hostile- to., thejr grand-father.

In 1852, the defendants took out writs, of: laracy, and-had their grand-father brought before- the. County Court of Rutherford.

Again, in 1857, they repeated the application, and had a second writ issued to bring him before the Court for inquisition, and it was made to appear that these applications were made with the view of harrassing the grand-father, the plaintiff, and of worrying him into a compliance with their views and purposes in relation to the disposition of his property.

Messrs. Shipp and Logan, attornies in the Court granting *546these inquisitions, acted as counsel in behalf of the defendants, and were called by them as witnesses.

Mr. Shipp stated that he had advised the defendants against taking the step; he did not remember certainly, but supposed he might have encouraged the defendants to hope for success upon a hypothetical state of facts. What these facts were, •or whether they were proved, the witness did not remember.

Mr. Logan stated, that he had advised the defendants they might succeed, upon a ceitain state of facts, but the facts as stated by them, were not stated on the hearing.

The plaintiff was proved to be a man of great old age, (being about ninety), but of remarkable clear miud and retentive memory, somewhat feeble from the natural imfirmaties of old age, but of perfect competency to transact business; he had employed his grand-son, William Davenport, as his general agent and active manager of business; it was proved that he had assisted actively, in preparing this cause for trial; the declarations of William Davenport as to the plaintiff’s incapacity, were offered in evidence by the defendant, but rejected by the Court, and he excepted for that cause. Under instructions, not excepted to, it. was left to the jury to say whether the plaintiff had been subjected to harrassing and expensive proceedings from a malicious design.

The defendants’ counsel made a point, and contended below, that the proceedings instituted in relation to plaintiff’s capacity,' being merely informations, were not such as to subject them for a malicious prosecution : and, further, that consultations held with attornies, and the filing of petitions and preparation, made by them in the conduct of the cause rebutted the idea of malice, and the Jndge was called on so to instruct the jury. But his Honor declined thus to charge, and told them “if there was a malicious combination between the defendants, to effect any of the objects mentioned in the plaintiff’s declaration by instituting and prosecuting the suits in question, the defendants had subjected themselves to an action, and that the advice received from the attornies, did not justify them, if the jury believed they were actuated by express *547malice.” These instructions were excepted to by the defendants counsel.

"Verdict for the plaintiff. Judgment and appeal.

Gaither, Merriman, Shipp aud Avery^for the plaintiff.

Edney, for the defendants.

EufuiN, J.

Yery clearly, the declarations of William Davenport, were not substantive evidence of the plaintiff’s mental incapacity. They stood on the same ground with declarations made by any other person.

We think, upon the other parts of the case^ that his Honor might well have left it to the jury to infer malice, and an evil motive throughout, from the want of probable cause — the utter groundlessness for the successive applications by the defendants for the proceedings in lunacy. But, wo suppose, as the testimony is not given, that it'was not necessary to submit the case in that point of view, to the jury; because the Court put the case on the ground of an express malicious and combined purpose in the defendants to pervert the proceedings in lunacy to effect the ends of unjustly harrassing the plaintiff, separating his grandson from him, and indirectly impeaching the validity of his will after death, instead of being bona fide, for the purpose of having due care taken of the person and property of one really incapable of managing his affairs. In such a case of real conspiracy to vex a person, who appears to be in no way a proper subject for such proceedings, the actors can in no degree be justified or excused by any professional advice; for such advice is only evidence to rebut the imputation of malice implied, and, therefore, does not palliate the wrong done upon an express and formal design to oppress, though done under color and pretense of such advice. It would be a reproach to the law, if such gross and repeated injuries, upon such unworthy motives, could not be redressed.

PaR CueiaM, Judgment affirmed.