Preston v. Cooper
Headnotes
Summary
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
Opinion of the Court
Text extracted by OCR from a scanned original; check the original for exact wording.
PER CURIAM.
1. Where a writ of attachment is sued out maliciously .and without probable cause, and damage ensues, the defendant has a remedy on common law principles, aside from the remedy on the attachment bond.
2. The only remedy of the attachment defendant, it seems, is upon the bond, or by an action for malicious attachment, in which latter case it is not sufficient to allege that the writ was wrongfully procured, but there must be allegations of malice and want of probable cause.
3. Where by statute no bond in attachment was required, and none given, the defendant, in the absence of legislation giving the right, cannot maintain an action against the plaintiff in attachment, by showing merely that the writ was wrongfully sued out, because there was no debt due from him, but he must show malice, want of probable cause, and damage, as required by the principles of the common law in actions for malicious prosecution.
How later courts describe this case
No later court has written an explanatory parenthetical about this case yet.
Cited by 4 cases
View all citing references →Relies on it most ⓘ
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.