Benson & Co. v. McCoy

R. W. WALKER, J.

The substance of the charge which was asked by the defendants, as we understand it, was, that if the attachment was sued out without malice, or any disposition to vex or harass the plaintiff, and under an honest belief that there was probable cause, the plaintiff was not entitled to recover. Placing this construction upon the charge, it is clear that the court erred in refusing to give it; for, sincé the Code, an action on the case will not lie for suing out an attachment, unless it is sued out maliciously, and without probable cause, as well as wrongfully. — McKellar v. Couch, 34 Ala. 336 , and authorities cited; also, Vandryon v. Linderman, 10 John. 106 ; De Medina v. Grove, 10 Ad. & Ell. (N. S.) 152, 168; S. C. ib. *712 172, 177; Churchill v. Siggers, 3 Ell. & Black. 937 ; Olinger v. McChesney, 9 Leigh, 660 ; 2 Greenl. Ev. §§ 449, 453.

We do not think that this charge raises, and therefore we do not consider the question, whether the existence of what is called malice may not be consistent with the absence of a disposition to vex or harass, and with an honest belief that there is reasonable and probable cause for suing out the attachment. Eor, if we suppose that the charge had been given as requested, and that the evidence had satisfied the jury that the attachment was sued out with malice, it is obvious that the basis of the charge would have been at once destroyed; and in that event, it could not have been looked to, (no matter what the other evidence in the case might have been,) as a direction to find for the defendants. If the plaintiff desired a definition of malice to be given to the jury, he could have attained his object by a prayer for additional instructions.

Judgment reversed, and cause remanded.