
    Max Elser et al. v. W. T. Pierce.
    (No. 3356.)
    Appeal from Wise County.
   Opinion by

White, P. J.

§ 737. Pleading; petition in suit for exemplary damages for wrongful, etc., suing out an attachment must allege want of probable cause. Appellee recovered judgment against appellants for $600 actual and $395 exemplary damages for the wrongful, etc., seizure of certain goods under an attachment. The petition did not allege that the attachment was sued out “without probable cause,” and upon this ground the appellants excepted to it specially in so far as it claimed exemplary damages, which exception was overruled. Held, the special exception should have been sustained. ‘ ‘ Malice and want of probable cause must both concur to support a charge of malicious prosecution. Neither is alone sufficient. If it were malicious and unfounded, but there was probable cause for suing out the attachment, nothing more than the actual damages can be recovered.” [W. & W. Con. Rep. §§ 33, 38; Culberson v. Cabeen, 29 Tex. 247.]

May 27, 1885.

§ 738. Actual damages; what are. “Actual damages which may be recovered for wrongfully suing out the writ of attachment are such only as are the natural, proximate and legal result or consequence of the wrongful act.” [W. & W. Con. Rep. § 1216; Wallace v. Finberg, 46 Tex. 35; Drake on Attach. § 175.]

§ 739. Erroneous charge. The court, in its charge to the jury on the subject of exemplary damages, omitted to instruct as to an essential element of such damages, viz., a want of probable cause for suing out the writ, and the charge was therefore materially erroneous.

Reversed and remanded.  