Benson & Co. v. McCoy
Supreme Court of Alabama
Appeal from the Circuit Court of Wilcox. Tried before the lion. Nat. Cook. This action was brought by John W. McCoy, against J. P. Benson & Co., to recover damages for the wrongful and malicious suing out of an attachment.
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Appeal from the Circuit Court of Wilcox. Tried before the lion. Nat. Cook. This action was brought by John W. McCoy, against J. P. Benson & Co., to recover damages for the wrongful and malicious suing out of an attachment. “On the trial,” as the bill of exceptions stales, “the plaintiff offered evidence to show, that an attachment was wrongfully sued out against his property by the defendants, and that he had thereby sustained some actual damages; while the defendants offered evidence tending to show, that they had reasonable and probable grounds for suing out said attachment; that it was…
1Opinion of the CourtR. W. Walker, J.
The substance of the charge which was asked by the defendants, as we understand it, was, that if the attachment was sued out without malice, or any disposition to vex or harass the plaintiff, and under an honest belief that there was probable cause, the plaintiff was not entitled to recover. Placing this construction upon the charge, it is clear that the court erred in refusing to give it; for, sincé the Code, an action on the case will not lie for suing out an attachment, unless it is sued out maliciously, and without probable cause, as well as wrongfully. — McKellar v. Couch, 34 Ala. 336,…
2Cases cited2 opinions
- Vanduzor v. LindermanNew York Supreme Court · 1813
- McKellar v. CouchSupreme Court of Alabama · 1859
3Cited by8 opinions
- Brown v. MasterSupreme Court of Alabama · 1894
- Tucker v. AdamsSupreme Court of Alabama · 1875
- Allison-Russell-Withington Co. v. SommersSupreme Court of Alabama · 1929
- McCarty v. WilliamsSupreme Court of Alabama · 1924
- Waring v. FletcherIndiana Supreme Court · 1898
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