Tamblyn v. Johnston

Citations

• 126 F. 267
• 62 C.C.A. 601
• 1903 U.S. App. LEXIS 4309

Syllabus

<p>1. Wrongful Attachment — Excessive Levy — Malice.</p> <p>When a plaintiff, having a legitimate demand against a defendant, maliciously, and with intent to injure the defendant, rather than to collect the debt, brings action for a sum largely in excess of what he knows to be justly due, and attaches property also of much larger value, thereby inflicting on the defendant special damages, such as do not ordinarily result from the institution of a civil suit, an action on the case may be maintained against him therefor, to recover for the malicious abuse of civil process.</p> <p>2. Demurrer to Evidence — Waiver by Introduction of Evidence.</p> <p>A demurrer to the evidence is waived by the defendant by the introduction of evidence in defense after the demurrer is overruled.</p> <p>8. Wrongful Attachment — Gross Overstatement of Claim — Presumption of Malice.</p> <p>Where the plaintiff, in his affidavit for an attachment, knowingly and grossly overstates the amount of his claim, such action warrants the inference of malice.</p> <p>4. Same — Action for Damages — Instructions.</p> <p>In an action for wrongful attachment, it was shown that defendants commenced an action in attachment against plaintiff as a nonresident, alleging in the affidavit filed that the amount due them was $5,100, although they had the same day received, to apply on such debt, the sum of about $2,900. It further appeared that such credit was in fact made as of a previous date on another note of plaintiff, not due, and which defendants did not then own, and on which they were not liable. Held, that such fact was properly submitted for consideration by the jury on the question of defendants’ good faith or malicious intent in suing out the attachment.</p> <p>5. Same — Estoppel.</p> <p>Defendants sued out an attachment against plaintiff in a foreign jurisdiction, and garnished a stockyards company which had possession, as-plaintiff’s bailee, of certain stock in transit; such stock being then sold: by t