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Preston v. Cooper

Preston v. Cooper, 19 F. Cas. 1294 (1871)
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Court
U.S. Circuit Court for the District of Iowa · Historical Federal Courts
Decided
July 1, 1871
Judges
Dillon, Love
Citations
19 F. Cas. 12941 Dill. 589
Headnotes
Case No. 11,395. Malicious Prosecution’ — Action for Damages— Evidence — Piioof. 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. To sustain an action at common law for maliciously suing out an attachment, it is not enough to show merely that the writ was wrongfully sued out because there was no debt due. The plaintiff must show malice, want of probable cause, and damage. [Cited in Thompson v. Gatlin, 7 C. C. A. 351, 58 Fed. 535. 536.] [Cited in Burton v. St. Paul. M. & M. Ry. Co., 22 X. W. 300, 33 Minn. 193.]
Summary
At law.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court

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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.

1885–1886: 11893–1894: 21911–1912: 118852026peak 1893 · 2

Relies on it most ⓘ

  1. Thompson v. Gatlin58 F. 534 (8th Cir. 1893)
  2. Burton v. St. Paul, Minneapolis & Manitoba Railway Co.22 N.W. 300 (Minn. 1885)
  3. Ames v. Chirurg132 N.W. 427 (Iowa 1911)
  4. Lauzon v. Charroux28 A. 975 (R.I. 1894)

Most recent

  1. Ames v. Chirurg132 N.W. 427 (Iowa 1911)
  2. Lauzon v. Charroux28 A. 975 (R.I. 1894)
  3. Thompson v. Gatlin58 F. 534 (8th Cir. 1893)
  4. Burton v. St. Paul, Minneapolis & Manitoba Railway Co.22 N.W. 300 (Minn. 1885)

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.

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