Spivey v. McGehee
Supreme Court of Alabama
Error to the Circuit Court of Pickens. Tried before tbe Eton. E. PlCKENS. Tbe facts of tbis case all appear from tbe opinion. 1. In an action on tbe bond, for tbe wrongful suing out of tbe writ of ne exeat, tbe plaintiff is not bound to sbow malice, nor can tbe defendant rely, by way of defence, upon probable cause.
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Error to the Circuit Court of Pickens. Tried before tbe Eton. E. PlCKENS. Tbe facts of tbis case all appear from tbe opinion. 1. In an action on tbe bond, for tbe wrongful suing out of tbe writ of ne exeat, tbe plaintiff is not bound to sbow malice, nor can tbe defendant rely, by way of defence, upon probable cause. Petit v. Mercer, 8 B. Monroe’s Rep., 51; Cox v. Taylor, 10 ib. 17. 2. Tbe charge of tbe court below is clearly erroneous, in directing tbe jury to “find for tbe defendant, unless they believed, from tbe evidence, tbat tbe writ of ne exeat was sued out maliciously.” Sucb is not tbe…
1Opinion of the CourtDargan, C. J.
— This was an action of debt, commenced on a bond executed by McG-ehee and others, in pursuance of an order of the Chancellor, granted upon the application of McGehee, as a condition precedent to the issuing of a writ of ne exeat against the plaintiff.
'The condition of the bond, after reciting the filing of the bill, the prayer for a ne exeat, and the fiat of the Chancellor, proceeds as follows: “Now, if the said complainants shall prosecute their said bill and writ to effect, or, failing therein, shall pay, or cause to be paid, to the said Spivey, all such cost and damages as he may sustain…
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