#### Williams v. Hunter.

} From Burke.

Case fur unlawfully suing out an original attachment, is to be considered m vie same li; hv with an action brought for suing out a writ wt '>■(• no'.hingfo due; and to support the action, plaintiff must show maV.--?, and U>-- nan', oí probable cause in the defendant. No action in s for irregularly suing cun an attachment, but for suing it out for tK purpose of oppression and wrong.

C.t'ir J-‘or unlawfully .suing out an original attachment before n Justice of the Peace.

Th<‘ evidence was, that a few days before the plaintiff left county, he met with the defendant, to whom he was Indebted, ami told him that he was going to Montgomery county to endeavour to raise money to pay his debts, that he would return in July, and asked defendant what he would do with him; to which defendant replied, that he would wait as long as any of the other creditors of plaintiff. The plaintiff left his family at their usual place of abode, and his brother, who lived with him, for the purpose of making a crop. Plaintiff spoke publicly of his design to go to Montgomery, and the purpose of his-going, and left his home on the last Tuesday in March; he had appointed that day to meet and pay one of his creditors at Morganton, where the Court was then sitting; he did not meet, and instead of pursuing the direct road to Montgomery which led through Morganton, he turned off two miles above and went out of his way. Defendant came to court and heard of this circumstance, and was also informed by one Higgins that he, Higgins, had a conveyance for all plaintiff’s lands, and that it was the opinion of some, plaintiff would never return: defendant was also informed that the plaintiff had declared he would pay him last, if he did at all. There was a diversity of opinion in the neighborhood, whether plaintiff would rec-iura. Defendant’s claim was due on the 10th of April, *546after the plaintiff had gone, and on the 11th of April, he sued out the writ of attachment, went to plaintiff’s house * with the officer and levied it on a mare which was claim-e(| j3y plaintiff’s brother, offering to wait provided his debt was secured.

Plaintiff returned in June. Defendant’s counsel moved the Court to instruct the jury, that if they believed that the defendant sued out the attachment honestly, and that he had reasonable grounds to do so, plaintiff ought not to recover.

The Court, Paxton, Judge, charged the jury, thatthe suit by attachment wras a particular remedy pointed out hy statute; defendant wras bound to know what the statute required, and to see that he acted within its provisions, otherwise he acted illegally, and was liable to the plaintiff in this action. Verdict for plaintiff, new trial refused, judgment and appeal.

Taylor, Chief Justice.

I cannot distinguish this Case from an action for maliciously holding a party to bail, or suing out a writ when nothing is due; in which case the gist of the action is malice, and the want of a probable cause. For although the plaintiff in the first action should fail to recover, yet unless it was brought with a view to oppress the defendant, and a knowledge that he had no sufficient cause of action, it will not give the original party a right to sue. The complaint here is, that the plaintiff was not subject to the attachment law, not having recently removed; but there is no pretence that he was not justly indebted to the defendant, and if the latter had reason to apprehend the loss of his debt, and believed that the plaintiff had so removed as to subject, his property to attachment, he cannot be made liable in this action. It was for the jury to consider, under all the circumstances of the case, whether the defendant’s conduct was influenced by vexatious motives. The plaintiff, instead of meeting a creditor according to appoint-*547Bient, went out of his way to pursue his journey; a cir-cumstanre which became known to the defendant soon after it occurred. He learned, also, that he had conveyed all his lands to one of his creditors, and that he had determined to pay him last, if he paid him at all. When to this is added the difference of opinion that prevailed in the neighborhood relative to the probability of bis return, it might have been thought by the jury that the circumstances were strong enough to overpower the presumption of fairness, arising from the plaintiff’s assertion as to his intention, and the apparent publicity of his removal. They were at least worthy of consideration, and whatever just inference arose from them should have determined this controversy. It is not for irregularly suing out an attachment, that this action will lie; but for suing it out for the purpose of oppression and wrong. There should be a new trial.

Hall, Judge.

I do not think that this case presents any facts which show that the attachment improperly issued. It appears that the plaintiff was indebted to the defendant; that he said it was the last debt he would discharge, as the defendant had been informed. He was also informed that he had conveyed away all his lands; that he had evaded seeing one of his creditors, and paying the debt he owed him, on the day he wms to start to Montgomery. as he had promised to do; that it was doubted by the neighborhood whether he would return; besides it does not appear that he went to Montgomery, and was there when the attachment issued. From all these circumstances. I cannot see wherein the defendant transcended the limits prescribed by the act which authorizes attachments to issue. That act directs that attachment» may issue, when the party praying it makes oath that his debtor hath removed or is removing himself out of the county privately, or so absconds or conceals himself t.hat the ordinary process of law' cannot be served on such *548debtor. From tbe facts set forth, the defendant might have believed that tbe plaintiff had absconded, or so eon-cealed himself that the ordinary process of law could not be served upon him; and if he believed it, he was not amenable in the present action- although the facts were otherwise than he believed them to he. It is «of only necessary, for instance, in "the present case, that <J?e plaintiff should have been residing in the county of Montgomery openly and not absconding from the process of law; but it is also necessary to prove that the defendant knew it. It must be taken that the party swore to tbe truth, until it is proved that he knew the facts to be different from what he deposed to. I therefore think the rule fora new trial should be made absolute.

Henderson, Judge, concurring,

Judgment reversed:.