75 Ga. 73 | Ga. | 1886
“ In Farmer vs. Darling (4 Burr, 1971), one of the earliest reported cases, if not the earliest, Lord Mansfield instructed
In a case founded on the suing out of an attachment wrongfully, our court' held that the defendant in such a proceeding had no right of action against the plaintiffs therein unless it was done with malice and without probable cause. Sledge vs. McLaren, 29 Ga., 64; Cook vs. Walker, 30 Id., 519; Melson vs. Dickson, 63 Id., 683; Sturgis & Berry et al. vs. Frost, 56 Id., 188; Riley vs. Johnston, 13 Id., 260, 262; Reid vs. McLendon, 44 Id., 160, 161; Mitchell vs. S. W. Railroad Co., this term.
By express provisions of our Code, a criminal prosecution must be maliciously carried on, and without probable cause, to entitle the party prosecuted to maintain this action ; the want of probable cause shall exist only when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused ; malice may be inferred from a total want of probable cause, but such inference may be rebutted by proof. §§2982, 2983, 2987.
The restrictions under which such actions are placed, and the guarded conditions authorizing them, clearly show that they are not'highly favored or much encouraged, and this is because of their tendency to promote litigation and engender strife, as well as to deter persons from coming forward to vindicate the public justice ana to insist upon their private rights in the only way that the law allows. If an action would lie under less carefully guarded circumstances, then every suitor, who might happen to be cast in his suit, would be liable to an action for every process issuing at his instance during the progress of the cause instituted for the protection of his interests, whether it was
There is nothing in Juchter vs. Boehm, Bendheim & Co., 67 Ga., 534, as was insisted by counsel for plaintiff in error, at all inconsistent with the principle here announced ; so far from it, the second head-note of that case, expressly affirms it. That damage flowing from the violation of an agreement gives a right of action to the party injured in consequence thereof, without an allegation and proof of malice or want of probable cause, is unquestioned law,, and that where such a breach of duty, resulting in damage, is done maliciously and without any probable cause, this may be added to the wrong to enhance a recovery by exemplary damages, as well as those actually sustained, is equally manifest, as was demonstrated by that case. We think the propriety of the decision of the judge of the superior court upon the question referred for adjudication is most manifest.
Judgment affirmed.