’42 , :r, . - FEDERAL aaroarmz, vol. _38»- ,
clear that this claim stands upon at least no greater equity than a claim
for detention. The sale was the act of the courtin asomewhat higher
sense than the arrest under process, sincethe saleconld only be had upon
a special order. But both. claims are excluded by the same principle
that allows a party to resort bmw fide. to the proper tribunals for the en-
. forcementrof his supposed rights, without other liability, in case of fail-
ure, than the law itself prescribes. ..1;: _ _
The gencralrule is that damages to person or property arising in the
progressofra suit regularly instituted in good faith, and under the pro-
‘ cess of a court havingjurisdiction, are not recoverable beyond the taxa-
ble costs and expenses, unlessnthe law has specially. required security for
damages also.; Upon this point Judge Cooley says:. ·— , . r
"It is the lawful right of every manwho believes he has a. just demand
against another to institute a suit and endeavor to obtainthe proper redress.
* · "‘ * To compel him, as theipenalty, for instituting a suit he cannot
sustain, to pay the costs of the defense, is generally all that is just, and is
suiiicient to make persons cautious about institutiiig suits which they have
reason tobelieve are baseless.? ,‘Qoo1ey,ATorts, (2d Ed.) 207.
The exceptions are where the proccssis void, or hasbeen vacated, for
being irregularly issued; or. where the suit or prosecution was instituted ·
malicious1y .and2rwithout_, probable cause, or in bad faith, which amounts
to a. willful abuse rof the.r`i;ght:_t0 sue, (Fisclwr v. Lgmgbein, 103 N. Y.
84,, 8 N. E. Rep. 251; Marks rv: Townsend, 97 N,. Y. 590; Lwndt v. Hells,
19 Barb; 283; Hayden v. Shed,-'11.Mass. 500; Barker v. Stetson, 7 Gray,
53; Langford2v. Railroad Go.,—144.Mass..431,·11 N. E. Rep. 697.;) and the
malice or wa-ntrof probable causemust be alleged and proved ,~ (Goslin v.
.W·1lc0ck, 2 Wils- 30-2, §307;»Card~ivaZ v. Smith, 109 Mass. 158.) Here
nothing of thatzlrind is pleaded or proved. “
In commondawsuits 110 bond was formerly required tobe given for
the arrest of,-¤.~dcfendant,or an attachment of his goods. Tidd. Pr.
Bonds, as well as security for damages, were step by ,step required in this
state by the acts of 1824 and183_1,. and by the Revised Statutes, (1 Rev.
Laws,N». Y..c.» 49, § 7; 2 Rev. St. .*4, § 12, Id. *2-80 § 29; Bemwttv.
Brown, 4 Comet. .254; Act April 26, 1831, § 35;) and ondismissalonly
the legal “c0sts and expenses " were recoverable, unless,the‘statntory bond
included ",?damages." Van Hovenburgh v. Case,4 Hill, 541; Dunning v.
.Humq0hrey, 24 ,Wend. 31; Groot v. Gillespie, 25 Wend. 383 ;. Earl v.
Spooner, 3 Demio, 246. A ~ > » _ » · »
.· There is nosuggestion in this case that the sale pendente lite was not
fairly made`; and; being under amvalicl order of the court, it protects, all
parties equallynwith the purchaser, who acquired title under it. The
Trenton, 4 Fed. Rep. 657, and cases cited. When the process is void,
trespass or trover lies; and of coursejthe full value may then be recovered,
‘ because theprocess affords no justification. Drake, Attachm..§ 185b.;
Wehlev. Butler, 61 N. Y. 245. ·  » i —
,   But_mere··dismissal ofthe original suit, or a reversal on appeal, on
grounds not.aH'ecting the jurisdiction, do not affect the; validity or regu-
larity of the original process, or of sales pendente lite. ~ Story, Confl. Laws,