Marshall v. Betner

Citations

• 17 Ala. 832

Syllabus

<p>1. A plea to an action for wrongfully and vexatiously suing out an attachment, which avers that the attachment “was not sued out wrongfully, maliciously, or vexatiously, or without reasonable or probable cause,’’ presents a substantial defence to the action, and is not demurrable.</p> <p>2. A declaration in case for wrongfully and vexatiously suing out an attachment before a justice of the peace in Mississippi, which does not show that such justice had authority by the laws of that State to issue attachments, and w hich contains no averment connecting the defendant with the levy thereof, discloses no ground of action, and is bad on demurrer.</p> <p>3. Where an error has been committed against the plain tiff by the court below, this court will not refuse to reverse, and thus deprive him of the privilege of amending, because his declaration, to which a demurrer was improperly overruled, fails to show a good cause of action.</p> <p>4. In cases where malice is the gist of the action, and vindictive damages recoverable, fees paid to counsel in def nding against the wrongful act of the defendant, if reasonable and necessarily incurred, may be proved and considered by the jury in the-assessment of damages.</p> <p>•5. A judgment for the defendant in attachment does not .estop the plaintiff, when sued for wrongfully and vexatiously suing it out, from proving that the debt, upon which the attachment issued, was actually due. Such evidence is admissible to show probable cause, and repel the presumption of malice.</p>