Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 416
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416 JACOBS, BERNHEIMr & CO. V. CRUM. [Tyler Term,
Opinion of the court.
true. See Drake on Attach., sec. 737, citing Schrimpf v. McArdle,
13 Tex., 372.
The rule is thus stated in Culbertson v. Cabeen, 29 Tex., 256:
"But malice may be implied from the want of probable cause, the
implication subject to be repelled, however,'by facts and circumstances
indicating a fair and legitimate purpose and honest pursuit
of a claim believed to be just."
"To rebut malice, the defendant may show any pertinent facts.
. In such case it is a material question whether the defendant
acted prudently, wisely and in good faith; and for this purpose, information
on which he acted, whether true or false, is original and
material evidence." 1 Sutherland on Dam., 747.
Applying, therefore, the principles and rules of law which have
been stated to this case, as it devolved on the defendant to establish
malice in its legal sense against Mayer, it is essential to the correctness
of the verdict for exemplary damages that the facts developed
by the evidence were of a character to reasonably establish the fact
that Mayer did not believe the facts stated in his affidavit to be
true, or that, if he did so believe them, that his belief was formed
upon facts and under circumstances that did not justify him in making
up an opinion upon them in regard to the truth or falsity of the
charge imputed to defendant as ground for attachment.
The doctrine recognized as correct by Drake in his work on Attachments,
sees. 729, 738, is that this kind of action is governed by
the principles of the common law applicable to actions for malicious
prosecutions, and the cases quoted from, decided in several of the
states, show that such is the accepted rule; that they recognize the
common law principle applicable to actions for malicious prosecution.
Drake remarks (sec. 738): "These cases are equivalent to a
recognition of the common law principle we have been considering;
for it is admitted that the plaintiff's belief, on proper grounds, would
be sufficient to protect him from a recovery of those damages
which, but for peculiar statutes, would be authorized by the common
law, and could be recovered only on common law grounds."
The expression of belief as to the truth of the grounds on which
it was issued, contained in his letter to the plaintiffs, written on the
day of the issuance of the writ, indicate Mayer's belief that the
defendant "tried to convert his stock into cash and let his creditors
whistle;" in other words, to sell out in order to defraud his creditors.
The letter indicates the facts and grounds of his belief, and it contains
an intimation that his opinion was influenced in a degree by
the defendant's having sold his cattle and failed to tell him whom of
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/438/: accessed May 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .