Alsop v. Lidden

130 Ala. 548 | Ala. | 1900

TYSON, J.

In Brown v. Master, 104 Ala. 463, it was said: “The wrongfulness of the issuance of the writ (of attachment) would at common law have to be shown by the record of the attachment proceeding, disclosing a determination of that, suit against the plaintiff therein. But under ouir statute the defendant in attachment cannot ‘deny or put in issue the cause for which the attachment issued.’ — Code, § 2999 [§ 565 of Code of 1896] — and it follows that the non-existence of a statutory ground for issuance of the attachment may be, indeed lias to be, shown by matter de hors the record. It would seem also to result from the consideration just adverted to, that a suit for the malicious prosecution of an attachment suit may be instituted pending such prosecution, since no question involved in the attachment proceeding' can be of any moment in the action on the case for malicious prosecution.” The foregoing extract succinctly and clearly, and we think correctly, states the rule that under the statute, the attachment suit need not be terminated in order to entitle the plaintiff to maintain this action. This is decisive of the unsoundness of that assignment of the demurrer predicated upon the failure of the counts to aver a termination of the attachment suit, etc. The other grounds of the demurrer are not insisted upon as being meritorious, and, in fact, none of them are. '

The statement, or rather the instruction, given by the plaintiff in ■attachment to the constable who levied the writ, was clearly inadmissable. It was not a part of the res gestae of the delivery of the writ, nor of the res .gestae of any other act pertinent to any inquiry involved in the determination by the jury; but was manifestly within the rule forbidding a party from introducing his own declarations in evidence.

We cannot assent to the proposition that notwithstanding these errors, the appellant was not injured. This insistence is based upon the assertion that no malice was proven and no want of probable cause was shown by the evidence. Under the plaintiff’s evidence no ground existed for the suing out of the attachment. It is true, he admitted owing the debt. But having a debt, ■did not authorize the attachment. Nor need the plaintiff in attachment have entertained personal ill will towards the defendant, or a desire for revenge, or other. base and malignant passion to have made his act malicious. Whatever is done willfully and purposely, whether the motive be to injure the defendant, to gain some advantage to himself or through mere wantonnesa or carelessness, if it be -at the same time wrong and unlawful within the knowledge of the actor, is in legal ■contemplation maliciously done.

Probable cause is such a state of facbsi and circumstances as would lead a man of ordinary caution and prudence acting conscientiously, impartially, reasonably, and Avitliout prejudice, to believe that some one of the grounds for the suing out the writ existed. And in deciding upon the existence of probable cause, the plaintiffs belief in the existence of a ground for the attachment cannot be considered; nor the existence of such facts as might have influenced his judgment; but the test is, the effect they might have upon the judgment of ordinarily prudent and reasonable men. These definitions exclude 'all idea, that mere suspicions and belief, however honestly and intensely entertained, unsupported by facts known to the plaintiff in attachment, which would have justified reasonable and cautious men in believing the defendant had been guilty of some act creating a ground of attachment, constitute probable cause. “A part}'' may in extreme eagerness to collect a debt or to obtain security for it, without probable cause resort to an attachment; and the absence of probable cause, coupled with the unlawful act of suing out the writ, is a vexatious and malicious abuse of the process.” Durr v. Jackson, 59 Ala. 210. “Malice may sometimes, be inferred from the want of probable canse.”—Jordan v. Railroad Co., 81 Ala. 226.

Under the evidence in this case, (1) whether the attachment was wrongfully sued out, (2) whether it was maliciously sued out, and (3) whether sued out without probable cause, is a question peculiarly for the determination of the jury.—Lunsford v. Dietrich, 93 . Ala, 565, and cases cited.

Reversed and remanded.