Kirksey v. Jones
Supreme Court of Alabama
Error to the Circuit Court of Talladega. Action- on the case by Jones against Kirksey, for suing out an attachment, ancillary to a suit previously commenced, without any reasonable or probable cause, but for the purpose of vexing and harassing the plaintiff. There is no express averment in the declaration, that the attachment was wrongfully, vexatiously, or maliciously sued out. The defendant demurred. The demurrer was overruled.
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Error to the Circuit Court of Talladega. Action- on the case by Jones against Kirksey, for suing out an attachment, ancillary to a suit previously commenced, without any reasonable or probable cause, but for the purpose of vexing and harassing the plaintiff. There is no express averment in the declaration, that the attachment was wrongfully, vexatiously, or maliciously sued out. The defendant demurred. The demurrer was overruled. At the trial, upon the issue of not guilty, it was shown that an ancillary attachment was issued at the suit of Kirksey, upon an affidavit made by one McAfee as his…
1Opinion of the CourtGoldthwaite, J.
— 1. If there was no indication of the legislative will, that this action should be governed by rules different from those which obtain in suits for malicious prosecutions, the strong analogy there is between the two would probably induce the same conclusions; but when the remedy by process of attachment was first given in this State, the plaintiff, as a prerequisite to the process, was directed to give bond with security, conditioned to be forfeit if the attachment was wrongful!y, or vexatiously sued out; thus indicating, that the mere wrongful recourse to this process was a sufficient cause…
2Cases cited1 opinion
- Brown v. MasseySupreme Court of Alabama · 1830
3Cited by49 opinions
- Burns v. CampbellSupreme Court of Alabama · 1882
- Donnell v. JonesSupreme Court of Alabama · 1848
- Wallace & Co. v. FinbergTexas Supreme Court · 1876
- Pollock & Co. v. GanttSupreme Court of Alabama · 1881
- City National Bank v. JeffriesSupreme Court of Alabama · 1882
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