Biering v. First National Bank

Citations

• 69 Tex. 599
• 7 S.W. 90
• 1888 Tex. LEXIS 903

Syllabus

<p>1. Exemplary Damages — Attachent.—One sued in attachment, on an affidavit made by the plaintiff which is not true in fact, and whose money is withheld from him by process of garnishment sued out without probable cause and with malice, may recover as actual damages interest by way of damage at eight per cent on the money, payment of which was prevented, and for the period of its detention, and exemplary damages, in which may be estimated the injury to defendant’s credit caused by the proceedings.</p> <p>2. Malice. — See charge of court for a definition of malice held sufficient.</p> <p>S. Malice. — Want of probable cause and malice must both be apparent to authorize a recovery of exemplary damages in attachment proceedings. Want of probable cause can not be inferred from proof of malice. However malicious the act may. be, if the evidence shows there was probable cause to believe that the facts existed which authorized the attachment, no vindictive or exemplary damages can be recovered.</p> <p>4. Same — Charge op Court. — If want of probable cause is clearly shown, the jury may infer therefrom the existence of malice, but a court should not so instruct the jury.</p> <p>5. The mere suing out of an attachment, though with malice and without probable cause, will not authorize a recovery of damages against the plaintiff in attachment, when no seizure of property is made under the writ.</p> <p>6. Cases Reviewed. — Cheatham v. Riddle, 12 Texas, 112; Willis v. McNeill, 57 Texas, 476; and Dwyer v. Bassett, 63 Texas, 274, cited and reviewed.</p> <p>7. Charge op Court on Weight of Evidence.- — A charge as to a presumption arising from a given state of facts is a charge upon the weight of evidence, except in those cases in which the law raises a conclusive presumption.</p>