94 So. 103 | Ala. | 1922
To maintain an action under Code, § 2966, for the malicious suing out of an attachment, ill will or vindictiveness need not be proved, but only the want of probable cause coupled with the unlawful act of suing out the writ. Durr v. Jackson,
Defendant's contention is that he has proved the existence of probable cause for suing out the attachment, as a matter of law, by showing that it was honestly done upon the advice of learned legal counsel, based upon a full and fair statement of all the facts made by defendant to him; and that probable cause, thus established, is an absolute defense as against vindictive damages. That is, of course, a familiar rule of law. McLeod v. McLeod,
We think that, on the whole evidence, the question of probable cause, as based upon the advice of counsel, was for the jury to determine, and that the general affirmative charge for defendant as to vindictive damages was properly refused. However, having regard to the size of the verdict and the large amount of actual damage shown in excess of defendant's set-off judgment, we are satisfied that the jury's verdict did not include vindictive damages in the sum awarded.
It was competent for plaintiff to testify as to the effect of the attachment suit on his credit, and the state of his credit thereafter. O'Grady v. Julian,
Defendant's right to a set-off against plaintiff's claim was restricted by the scope of his plea. His offer was to set off his judgment for $464.48, the face of the judgment alone, and not the amount of the judgment together with the costs incidental thereto. He was therefore not entitled to the instruction requested as to the set-off of the judgment and costs.
Conceding that several of the questions allowed on the cross-examination of defendant's witnesses, who impeached plaintiff's character for veracity, called for irrelevant matter, as, for example, that plaintiff borrowed money on good security from a bank in which the witness was a stockholder, and that he had paid another witness what he owed him — the answers and the facts were of no importance, and could not possibly have influenced the verdict.
As to the amount of plaintiff's indebtedness to defendant, the judgment recovered by defendant against plaintiff in the original attachment suit was conclusive. No evidence, other than the record, was needed to support that judgment, and evidence of a debt exceeding the amount of the judgment was irrelevant and inadmissible under the pleadings.
It was competent for plaintiff to testify that he did not sell any of the cotton seed furnished him by defendant, or by one Mitchell at his request, its tendency being to disprove the existence of one of the grounds upon which the attachment was issued. It was relevant also upon the question of defendant's diligence in ascertaining the truth of the information which he claimed to have had to that effect.
The minute entries and the record of the sheriff's sale, in the attachment suit, were clearly admissible, the one to show the extent of the services of the attachment defendant's attorney, and the other to show the goods seized, and what became of them.
On the issue of malice, apparently, plaintiff was allowed to state that, at the time of the levy, he requested defendant to leave him out a little corn and potatoes, to which he replied by telling the sheriff: "No: don't leave out a thing; nail it all up and take it on; not a thing." We think that this response by defendant to plaintiff's request was proper for the consideration of the jury, as tending to show, inferentially, a hostile and vengeful spirit in resorting to and using the writ of attachment. Dothard v. Sheid,
We find no prejudicial error in the record, and the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.