
    S. Jacobs, Bernheim & Co. v. Isaac E. Crum.
    (Case No. 1680.)
    1, Practice.— A motion to exclude evidence to sustain a claim for exemplary damages, after the party offering it has closed his case, on the ground that the evidence is not sufficient to sustain the plea, is in the mature of a demurrer to evidence, but is an. irregular proceeding, and it is not error to overrule such a, motion,
    2. Same,— One who by bis conduct ratifies and confirms the act of his agent who sues out an attachment, knowing the grounds on which the writ is obtained are without foundation, is liable in. exemplary damages.
    3. Malice — Probable cause.—Malice in suing out a writ of attachment may be implied front the want of probable cause,
    4, Pact case.— See opinion for facts held proper to be considered in determining the responsibility of a principal for the malicious act of his agent in suing out a writ of attachment.
    5. Advice of counsel—It is not error to refuse to charge a jury that the advice of counsel given in a case, truly stated, whether correct or not, will constitute a protection to the client, if, in pursuing it, he begins attachment proceedings, when its tendency would be to divert the jury from considering independent evidence of a malicious intent.
    6. Charge of court.— Instructions, though abstractly proper, which gjiw© undue prominence to an isolated fact, should be refused when the court has already charged the jury correctly on the law of the case,
    7. Malice — Probable cause.—The question of malice is for the jury; ihmay be implied from a want of probable cause; this implication is, however, subject to be repelled by facts and circumstances indicating a fair and legitimate purpose in the honest pursuit of a claim believed to be just. Citing Culbertson v. Cabeen, 29 Tex., 356.
    8. Fact case.— See opinion for facts held properly admissible in evidence as tending to show the absence of probable cause in suing out a writ of attachment.
    9. Advice of counsel— In an action for malicious prosecution, if the defendant acted from motives of private interest, and without probable cause to support the prosecution, the fact that he acted under the advice of counsel will not exempt him from liability,
    10. Charge of court.—It is not error to refuse a charge, in a suit for damages for wrongfully suing out an attachment, that a specific state of facts constituted probable cause, when the existence of those facts was unknown to defendant when he applied for the writ,
    11. Charge of court.— It is not error to refuse a charge that, if the jury believe a stated fact from the testimony, they should find for a party designated, when there is no evidence to warrant the assumption of the existence of such fact.
    12. Exemplary damages.— To authorize a verdict for exemplary damages for maliciously suing out an attachment, there must be evidence to satisfy the mind that the writ was sued out through express malice, relating to and directed against the complainant, or from malice which the law would Imply, arising from the want of probable cause, or it must be made to appear that the motive inducing the proceeding was an illegal one.
    
      13. Same.—If a tort is committed deliberately, recklessly or by wilful negligence, with a present consciousness of invading another’s right, or of exposing him to injury, exemplary damages may be recovered.
    14. Same.—The principles of the common law applicable to actions for malicious prosecution apply to claims for exemplary damages for maliciously suing out a writ of attachment.
    Appeal from Tarrant. Tried below before the Hon. A. J. Hood.
    S. Jacobs, Bernheim & Co., on the 15th of February, 1882, brought suit in the district court of Tarrant county against Isaac E. Crum, on his note to them for $1,598.90, dated August 17,1881, due March 1, 1882, and bearing interest at the rate of ten per cent, per annum from maturity. An original attachment was at the same time sued out on the affidavit of S. B. Mayer, agent for the plaintiffs.
    The defendant pleaded a general demurrer and general denial, and specially in reconvention for the alleged wrongful and malicious suing out of the attachment, $3,000 as actual damages and $15,000 as exemplary damages. The jury returned a verdict for defendant for $3,000 actual damages and $6,000 vindictive or exemplary damages. Judgment was rendered for the defendant for $9,000. It was further adjudged that the plaintiffs failing to recover, and it appearing there was $1,005.85 in the hands of the' clerk, that the attachment be discharged and the money paid over to the defendant as a credit on the judgment. Defendant afterward filed a remitter from the “verdict for actual damages and judgment of $1,800, being the amount, principal and interest, of the note sued on.”
    The grounds alleged for suing out the attachment in Mayer’s affidavit were:
    ' That the defendant had disposed of his property in part, with intent to defraud his creditors, and that he was about to convert a part of his remaining property into money for the purpose of placing it beyond the reach of his creditors.
    The only allegations in the defendant’s plea on which it sought to base a recovery for exemplary damages were contained in the following extracts:
    “That the said S. B. Mayer, agent of plaintiffs, in suing out said writ of attachment, did so under the direction and at the instance of said plaintiffs; that said attachment was wrongfully and maliciously sued out by said plaintiffs, acting through their said agent, S. B. Mayer; that there were no grounds, or good and valid cause in law, for suing out said attachment.” And after traversing the grounds of attachment set out in Mayer’s affidavit, the special plea in reconvention proceeded: “That the said S. B. Mayer, agent as aforesaid, well knew at the time he sued out said writ of attachment that there was no valid cause therefor, but that he did the same maliciously, for the purpose of injuring and oppressing this defendant; and that plaintiffs, knowing there was no legal cause for issuing said attachment, and for the purpose of injuring and oppressing this defendant, instructed said S. B. Mayer to have said attachment issued and levied on the property of this defendant, and that plaintiffs, since the issuance of said writ, and knowing the malicious intent of the said S. B. Mayer in suing out said writ of attachment, have approved and ratified the acts of the said agent as aforesaid.” The defendant’s plea also sets forth that before and at the time of the levy of the writ he was a merchant, doing business in the village of Oak Grove; that by reason of the wrongful and malicious suing out and levying of the attachment “ he had been broken up and ruined as a merchant, and his credit lost and destroyed.”
    
      Robert G. Street and Templeton, Wynne & Carter, for appellants,
    on their proposition that to recover exemplary damages on a plea in reconvention for the wrongful and malicious suing out of an attachment, where the plea does not allege that the attachment was sued out without probable cause, but specifically charges only that the alleged grounds of attachment did not in fact exist, and that the plaintiffs, so knowing, maliciously directed the suing out of the same by their agent; or alternatively that the attachment was sued out by the agent maliciously, knowing there were no grounds therefor, and that plaintiffs afterwards, knowing these facts, ratified the acts of the agent,— the evidence must tend to establish one or the other combination of specific facts charged, and, in such case, malice cannot be inferred from the want of probable cause, cited: Griffin v. Chubb, 7 Tex., 603; Gabel v. Weisensee, 49 Tex., 142; Cooley on Torts, 183,184; Snow v. Allen, 1 Stark., 502; Ravenga v. McIntosh, 2 Barn. & Cress., 693; Walter v. Sample, 25 Pa., 275; Cooper v. Utterbach, 37 Md., 282; Olmstead v. Partridge, 16 Gray, 381; Stone v. Swift, 4 Pick., 389; Ornes v. Snider, 69 Ill., 376; Ash v. Marlow, 20 Ohio, 119.
    As to advice of counsel constituting probable cause, they cited: McManus v. Wallis, 52 Tex., 547; Landa v. Obert, 45 Tex., 544; Cooley on Torts, 181, 182; Munus v. Dupont, 3 Wash. C. C., 31; 1 Am. Lead. Cases, 224; Wheeler v. Nesbit, 24 How., 545; Stansbury v. Fogle, 27 Md., 381.
    
      On the proposition that no exemplary damages could be recovered if the defendant believed, when suing out the writ, that probable cause for attachment existed, they cited: Gibson v. Hill, 21 Tex., 225; Howerton v. Holt, 23 Tex., 51; Thornton v. Tandy, 39 Tex., 544; Kent’s Com., H, 516, 520, 531.
    On the proposition that the mere prosecution of the attachment suit by the principal, the suit having been begun by the agent, will not render the principal liable for the malice of the agent, and ipso facto amount to a ratification, they cited: H. & T. C. R. R. v. Cowser, 57 Tex., 306; Hays v. R. R. Co., 46 Tex., 272; G., H. & S. A. R. R. v. Donahoe, 56 Tex., 162; Wallace v. Finberg, 46 Tex., 37.
    On the proposition that when the evidence is not reasonably sufficient to satisfy the mind of the correctness of the verdict, the mere fact that there is some evidence to support the verdict is not sufficient, they cited: Long v. Steiger, 8 Tex., 462; Patton v. Evans, 15 Tex., 363; Taylor v. Ashley, 15 Tex., 50; Garvin v. Stover, 17 Tex., 295; Chandler v. Meckling, 22 Tex., 42; Willis v. Lewis, 28 Tex., 192; Edmundson v. Silliman, 50 Tex., 112.
    
      G. Y. Hogsett, for appellee,
    on the effect of the advice of counsel, cited: Griffin v. Chubb, 7 Tex., 610-11, and Moak’s Underhill on Torts, pp. 169-70.
    On probable cause, he cited: Greenl. Ev., vol. 1, § 7; Web. Dic., word “ Knowledge; ” Drake, Att., § 732a; Culbertson v. Cabeen, 29 Tex., 248.
   Walker, P. J. Com. App.

It is assigned as ground of error that the court erred in overruling plaintiffs’ motion (made after the defendant had closed his case on his plea in reconvention) to exclude from the jury the subject of exemplary damages, because there was no evidence tending to support the allegations of the defendant’s plea with respect thereto.

A. motion of this character is assimilated to a demurrer to evidence, but it is not, we conceive, equivalent to it. A demurrer to evidence admits every fact and conclusion which the evidence conduces to prove. Hughes v. Christy, 26 Tex., 230. The demurrant submits the result of his case to the court’s judgment on the evidence, as a question of law as to its legal effect, and if the demurrer is sustained, the judgment of the court upon the case made by the evidence follows. This motion simply invokes the court to determine whether there is any evidence as to certain specified facts constituting the defendant’s grounds for exemplary damages, but the plaintiffs do not in their motion tender any issue, as by demurrer to evidence, on which the court might render judgment on the effect of the evidence thus submitted for consideration.

Under this view, the court might properly have declined to consider the motion as being an irregular and irrelevant proceeding, and it was not error to overrule it. Besides, the bill of exceptions shows only that the motion was overruled; but it does not elsewhere appear than in the motion itself, at what stage of the trial, or under what circumstances, the motion was made to withdraw the subject of exemplary damages from the further consideration of the court and jury.

It is assigned as error that “ the court erred in not giving the fourth special instruction asked by the plaintiffs, and in not excluding by its charge the question of exemplary damages from the jury, because there was no evidence to support a finding therefor, and because there was no evidence that, at the time of suing out the attachment, plaintiffs or their agents knew the grounds on which the same was sued out to be untrue in fact, or that plaintiffs, knowing the grounds to be false, ratified and adopted the malicious suing out of the writ by their agent.”

The fourth special charge asked by plaintiffs, and refused, is as follows:

“ The defendant claims $15,000 as exemplary or punitory damages for the alleged wrongful and malicious suing out of the attachment, and charges that plaintiffs, knowing the grounds on which the attachment was sued out as set forth in the affidavit to be untrue, instructed and directed said proceeding; and that S. B. Mayer, acting as their agent in suing out the attachment, sued out the same knowing said grounds to be untrue, and that plaintiffs ratified and confirmed the malicious suing out of the attachment by their agent. There is no evidence to sustain any of these grounds, and you are instructed not to consider any evidence of exemplary or punitory damages at all.”

"Where tliere is evidence tending to establish an issue in the case it is the province of the court to submit the law applicable to it under the pleadings; but where there is a want and absence of such evidence, it is often misleading and erroneous to do so. See Austin v. Talk, 20 Tex., 167; Andrews v. Smithwick, id., 118; McGreal v. Wilson, 9 Tex., 429.

In this case there was evidence which tended to establish such of the facts relied on for exemplary damages as the jury might have construed to support the defendant’s claim therefor. If S. B. Mayer, acting as plaintiffs’ agent in suing out the attachment, did so knowing the grounds to be untrue, and that plaintiffs ratified and confirmed the malicious suing out of the attachment by their agent, the plaintiffs would be liable in exemplary damages.

The evidence in behalf of defendant tended to prove the want of probable cause to sue out the attachment on the ground relied on in the affidavit. Malice in suing out the writ may be implied from a want of probable cause. Drake on Attach, sec. 732 (a), and note 4 to sec. 732.

There was evidence also from which the jury might have deduced the conclusion that the plaintiffs adopted the act of their agents after obtaining a knowledge of the facts. The evidence showed that the plaintiffs were advised at once by their agent, Mayer, that he had attached defendant’s goods and land; that they telegraphed Mayer to attend the sale of the goods, which were sold the 6th of March, under the attachment proceedings, and to buy in the goods. After acquiring such knowledge of the existence of his attachment suit and the proceedings had and to be had upon it, and as parties plaintiff to it, being chargeable with knowledge of the grounds on which the attachment rested, it was a circumstance tending to show that they may have learned the facts on which their agent had procured the attachment, and ascertained whether it had been rightfully or wrongfully sued out. Such negative circumstantial evidence, though it is slight and inconclusive standing by itself, is entitled to be considered and weighed by the jury in determining, from all the facts and circumstances, whether the plaintiffs knew of the malicious suing out of the writ when they acquiesced in his action by subsequently prosecuting the attachment proceedings, and adopting the acts of the agent, by causing, under the levy of the writ, the goods to be sold, and their participation in purchasing at the sale of them. The plaintiffs, under such circumstances, must be held to have been put on inquiry concerning the facts under which their agent had acted in thus seizing the defendant’s property, and of ascertaining whether or not there was probable cause) and, if the facts were such as he might be supposed to have readily ascertained by inquiry, the jury would have been at liberty to have drawn the conclusion that he did obtain a knowledge of the supposed want of probable cause and the malice that would be implied which existed when the agent sued out the writ. Such evidence would, it is true, have been circumstantial, and such as would be subject to be rebutted by evidence to show that they did not, in fact, learn these facts as to the malicious character of the proceeding; but it would nevertheless have been legitimate evidence, tending to establish the defendant’s case, which the court was not at liberty to disregard and treat as being no evidence whatever, or evidence that was wholly insufficient. In Blum v. Gaines, 57 Tex., 142, it was said; “There Avas evidence which called for a charge upon exemplary damages, and whether it was sufficient to support the claim therefor was for the jury, looking to all the facts of the case, unless so clearly insufficient that the court could so declare it.”

The plaintiffs adopted the act of their agent, Mayer, by retaining the benefits which the attachment procured for them and. by continuing to prosecute the suit without dismissing the attachment, and there is evidence of a circumstantial character Avhich tended to establish the fact that they did so with knowledge of the facts and circumstances under which Mayer had procured the issuance of the writ. See G., H. & S. A. R’y Co. v. Donahoe, 56 Tex., 166, where it was held that notwithstanding the general rule that the principal is not liable in exemplary damages for the unauthorized malicious acts of the agent, still, if the principal should ratify or accept such acts of the agent, it thereby becomes liable for the damages, as well exemplary as actual, resulting from the act.

In this case the plaintiffs accepted the results of their agent’s action in suing out the writ, and continued to prosecute their suit and the attachment proceedings throughout the case to its final disposition, under circumstances from which it might be reasonably inferred that they knew at least some of the facts attending the suing out of the attachment, and we think the court did not err in refusing plaintiffs’ fourth special charge, and in not excluding the question of exemplary damages from the jury. It was their province to pass upon the evidence on that subject, if any there was, tending to establish the defendant’s plea in reconvention, and after they had done so it Avas the province of the court to review their action, and such evidence cannot be disregarded so as to exclude its consideration, unless it amounts in law to no evidence whatever proper for the jury to consider on that issue.

The fifth assignment is that the court erred in not giving the following instruction;

“ The advice of counsel, given on a case truly, stated, and the advice honestly pursued, whether correct or not, will repel any inference of malice and constitute a good protection for the client. If, therefore, the attachment Avas sued out on the advice of counsel, fairly obtained, upon information of the facts communicated by the agent of the plaintiffs at the time, they will not be liablefor exemplary or punitory damages.”

The court did not err in refusing this instruction, for several reasons. Malice being an essential ingredient in the defendant’s plea in reconvention for exemplary damages, it was a fact to be established from all the facts and circumstances developed in evidence, and the jury might properly consider the circumstances which attended the action, conduct and conversations of Mayer, at the time of suing out the writ of attachment, including the conversation, with and advice obtained from his attorney. It would have given undue prominence to such evidence, and have been calculated to mislead the jury, thus to have singled out the particular evidence bearing on the effect and weight to be given to it.

Where the court has sufficiently instructed the jury upon the law of the case, it is proper to refuse instructions applicable to isolated facts or parts of the evidence, which, though correct in point of law, would have the effect to give the matters to which they relate an undue prominence in the minds of the jury. Gray v. Burk, 19 Tex., 228.

The evidence before the jury was of a character which, it seems to us, did not warrant the court in giving the instruction, because it did not sufficiently exclude the idea that notwithstanding the advice of the counsel given on a communication of the facts by the agent of plaintiffs, and that the attachment was sued out on that advice, and notwithstanding the advice was pursued, yet the agent may have been influenced by some improper motive which the law would characterize as malicious, or that notwithstanding his intercourse with and the advice of his counsel, may have known that the grounds of his attachment were unfounded in fact, and did not warrant the issuance of an attachment. It is not true as a legal proposition, as we conceive, that if an “ attachment is sued out on the advice of counsel, fairly obtained, upon information of the facts communicated at the time,” that the inference of malice is therefore repelled, and “constitutes a good protection” for the party suing it out, and that he may not, therefore, be liable for exemplary damages. The question of malice is for the jury, to be determined from the facts and circumstances proved. It 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. Culbertson v. Cabeen, 29 Tex., 256. The circumstances and facts attending the agent’s consultation with and advice from the plaintiffs’ attorney, constituted, together with any other evidence leading in the same direction, such rebutting evidence, and was entitled to be considered by the jury in connection with the whole evidence in that light. It was not, however, evidence of a conclusive character which could exclude from consideration other evidence bearing upon the question of malice, or which was entitled to be treated as an isolated and decisive fact which determined the issue of malice; nor to be regarded otherwise, indeed, than as one of the circumstances in evidence to be viewed and weighed in connection with and in relation to the whole evidence of the entire transaction.

It would often occur in cases of this character, that the fact that a party acting under advice of counsel, upon facts fairly stated, might nevertheless have been guilty, under other facts developed in the case, of oppression and malice, and therefore his defense against exemplary damages could not be made available because of the advice given and followed. There was evidence which tended to show that Mayer contemplated the proceeding by attachment before he •was advised by counsel to take that course. This advice was given in the morning of the day of the issuance of the writ; the night before a witness testified that he, Mayer, said he wished he had the sheriff there.” Besides this, he wrote on the day of the issuance of the writ to the plaintiffs, as follows:

“ Fort Worth, February 15, 1882.

“ Messrs. S. Jacobs, Bernheim & Co., Galveston, Texas:

“Gents — I will now give you the particulars concerning I. E. Crum. After receiving letter and telegram I called upon Temple-ton & Carter and consulted with them. We concluded to take one of their men along with deeds of trust and other papers. We arrived there last evening, and in asking what he could do for me in cash as to his letter, he said nothing at present, but would try and have $300 ready for us March 1st. I then questioned him as to his cattle, and he replied that he sold them some time ago for $1,400, with which he paid his creditors, but failed to tell me whom he paid. I then asked for a deed of trust and other securities, and I would be willing to extend his time until next crop time. Then he answered that his land which he now has, amounting to three hundred and sixty-two acres, was purchased from a party by name of Hudson, residing in Johnson county, to whom he gave a vendor’s lien. That settled that; and he claims one acre of land on which is situated his storehouse, dwelling, barn and other outbuildings. Finally I made him a proposition that if he would secure my account by any responsible party, I would be willing to make this proposition: To take $300 payable on March 1st, and $200 each month, with ten per cent, interest added. He didn’t know if he could succeed in doing that. I promised to meet him at noon today. I made this proposition so as to make him believe that I wouldn’t take any steps towards attachment, and at 3 A. M. I was on my way back here again, and I stated these facts to the lawyers, and they concluded that there was no time to be lost, because if he could not succeed in getting the securities, his Fort Worth creditors might get ahead of us, and so we issued papers- on the following grounds: He claims his stock, amounting to $3,000, his book and note account, $1,600, on which he claims to owe but $4,000. How, my judgment as to his stock is what I telegraphed you. It will not bring more than enough to cover our claim; for his shelves are nearly empty, his boots and shoes are mostly gone, his groceries are very low and his stock of dry goods is in like fix. The biggest part are his clothing. He admitted to me that he intended to sell out his entire stock and quit business, and has a card to that effect hanging up: “ At cost — dry goods, clothing, etc., to close out stock.” His cattle, as I told you, he sold, and he had nothing to give me to secure my debt. Well, we got papers, and the constable is at his place. We attached that land and stock about noon. Mr. Crum came to town, and has since been trying to accomplish something. There was to be a creditors’ meeting at 2 P. M., and the Fort Worth creditors wanted to secure my account, but at this hour, 4 P. M., they have failed to come. Mr. Evans, of E. & M., asked, during my absence, Mr. Carter how much I would take for my claim in cash, and he told him that he would consult me, but also have not seen him. I advised you of all these facts by telegraph. I have seen Crum once since and he was in company with Casey, of Casey & Swasey, and they went to a lawyer’s and no doubt are trying to see what can be done. Rest easy, we are secured and will get our money. L. & II. Blum are interested to about $250, E. & M. $1,200, and the balance among others here. We didn’t act any too soon, and my opinion is he wouldn’t have held out much longer, for he tried to convert his stock into cash and let his creditors whistle. Will keep you posted of any further developments. . . .

Yours, etc., S. B. Mayer.”

This letter, whilst it may be consistent with the fact that the writer of it was actuated by anxiety and alarm for the safety of plaintiffs’ debt, in the delusive hopes he held out to Crum that he would take security and be content not to attach, and although it is also consistent alike with possibility that he believed he had probable cause for suing out the writ, and was influenced by no improper motive, there are statements contained in it that allow of a different interpretation.

The burden of the letter indicates an apprehension that the defendant would sell oufc his goods; that they were not of sufficient value to pay all his debts; and that unless he attached at once, some creditor, more fortunate than plaintiffs, might attach, and thus, as he expresses it, “ get ahead ” of plaintiffs. He states distinctly that he sued out the attachment on the grounds that Crum’s estimate of his means to pay his debts, amounting to $4,000, was exaggerated, and that the defendant’s stock of goods would not bring more than enough to cover plaintiffs’ claim. He pointed out the further danger to be apprehended from defendant’s statement to him of his intention to quit business, in connection with his card hung up advertising; “ At cost — dry goods, clothing, etc., to close out stock.” Some other matters are stated to show the failing circumstances of defendant, but no fact was distinctly or pointedly referred to, showing that defendant was attempting to or had fraudulently disposed of any of his property to the prejudice of his creditors. If the agent of the plaintiffs acted upon considerations of fear on account of the failing circumstances of the defendant, and sued out the attachment merely as a prudential effort to obtain the advantage of being early in the contest among creditors to obtain the floating plank in the midst of the threatened wreck, by being the first to issue an attachment, and if he had no probable ground to believe the facts stated in his affidavit for attachment, such evidence would certainly evince that he was acting under an improper motive, and the law would deem it malicious and unauthorized.

Notwithstanding the advice of counsel, the evidence above referred to, and his declared purpose to merely amuse Crum with propositions for security, in order to lull his fears lest an attachment would be sued out, were proper to be considered on the question of malice, and consequently the instruction asked to be given was properly refused. Where the evidence, in an action for malicious prosecution, shows that the defendant acted from motives of private interest and without probable cause, to support the prosecution, his action, under the advice of counsel, will not exempt him from liability. Glascock v. Bridges, 15 La. Ann., 672.

The views we have expressed are to our minds sufficiently satisfactory on the question presented without suggesting that the evidence, perhaps, on the subject of the advice of counsel, did not justify the instruction if the doctrine stated in it had been otherwise applicable. To render its application pertinent, it should have appeared from the evidence that Mayer, after stating fairly to his counsel all the facts in regard to the grounds relied on for attachment which he knew were capable of proof, submitted for that counsel’s judgment and determination whether, upon such facts, he would in law be justified in suing out an attachment, and that on being advised that he would be so warranted, he acted upon such advice.

The purport of the conferences between Mayer and the counsel was general, and had reference mainly to the question of expediency as to the best course to be pursued for the interest of the plaintiffs, after a statement of all the facts. It is true that the evidence showed that the attorney advised that an attachment would lie, and advised the pursuit of that remedy, and that Mayer was willing to follow whatever course the attorney might suggest as best and proper, but it does-not conclusively appear.that Mayer in any special manner submitted for the opinion of the attorney whether the facts stated to the latter warranted an attachment, and that he sought such an opinion with the intention of being satisfied on that question, and of being controlled in his action by the opinion that might be given, irrespective of any preconceived intention or considerations of pecuniary policy he may have entertained, to sue out the writ if his views of financial expediency required it.

It is assigned as error that the court refused the following instruction:

Although the facts charged in the affidavit may not be true, yet if there was probable cause for believing them to be true, the plaintiffs will not be liable for exemplary or punitory damages; probable cause is such a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice upon the facts within his knowledge, to believe that the grounds charged were in fact true, or a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the facts charged are true; and if the jury find from the evidence that, at the time of suing out the attachment, the defendant had disposed of a part of his property, retaining the use and possession thereof, known to the plaintiffs or their agents, they are instructed that this constitutes probable cause for the charge in the affidavit that the defendant had disposed of a part of his property for the purpose of defrauding his creditors.”

The instruction was properly refused, because there was no evidence tending to prove that Mayer had any information, at the time of suing out the writ of attachment, that the defendant had retained the use or the possession of the cattle sold to Brown. The evidence of Mayer on the stand, his conversations with Carter, his attorney, detailed in evidence by both of them, and his letter to the plaintiffs, are alike silent concerning the fact in question, and they create a strong implication in connection with the fact of so short a time elapsing within which he had opportunities to inquire, and the absence of any circumstance in evidence indicating such knowledge on his part, that when he sued out the writ he had not learned anything concerning the defendant’s retaining the use or possession of any of the cattle after their sale. See Culbertson v. Cabeen, 29 Tex., 256; Drake on Attach., 741.

It is not error to refuse to instruct the jury that, if they believe a certain fact from the testimony, they should find for the plaintiff, when the evidence did not warrant the assumption of the existence of such fact. Hatch v. De La Garza, 22 Tex., 176.

It is assigned as error that the court erred in not giving plaintiffs’ second special charge on the facts involved in the cause tending to show that Crum had made a fraudulent disposition of his property.

Instruction asked as follows:

“ If the defendant had disposed of his cattle at the time of suing out the attachment, retaining the possession and using the same as his own, such facts constitute fraud in law, and justified the suing out of the attachment, on the ground that he had disposed of a part of his property for the purpose of defrauding his creditors, and in that case the defendant is not entitled to recover any damages whatever.”

This proposition is stated without the qualification that, whilst such facts raise a prima facie presumption of fraud in such a sale, it is not conclusive, and is subject to be rebutted by proof explanatory of the facts, and thus render the sale unobjectionable, so far as the imputation of fraud is concerned. The instruction asked for makes the fact of selling and remaining in possession and using the property conclusive of fraud against creditors. There was evidence strongly tending to rebut an inference of fraud in the transaction, and it would have been erroneous to have given the instruction without submitting to the jury to determine whether, under the evidence in the case, the defendant had repelled by his evidence the presumption of fraud which otherwise would arise. See Gibson v. Hill, 21 Tex., 225; Howerton v. Holt, 23 Tex., 53.

The following is also assigned as error:

“The court erred in the statement and reiteration to the jury that the adoption and ratification by plaintiffs of the suing out of the attachment by their agent, after being informed of the facts, would make the plaintiffs liable for exemplary damages if the attachment was sued out wrongfully and maliciously: a. Because there was no evidence of malice on the part of the agent, b. There was no evidence of any knowledge or information on the part of the plaintiffs respecting any malice of the agent, c. There was no evidence of any adoption or ratification by the plaintiffs of any malice of the agent, d. Because calculated to mislead the jury into the belief that the mere undertaking to prosecute to judgment a suit instituted by original attachment by an agent would make the principal liable for vindictive damages, when the agent had acted maliciously.”

We think the court did not err in thus charging the law. We have elsewhere hitherto, in this opinion, indicated sufficiently, perhaps, reasons for sustaining this portion of the charge as not being merely hypothetical and unwarranted by evidence.

The remaining grounds of errors assigned are as follows:

“ The verdict is contrary to and unsupported by the evidence in assessing exemplary damages.

“ The verdict is grossly excessive, both as to amount of actual and exemplary damages, and was obviously actuated by passion and prejudice, regardless of law and evidence.

“The verdict is contrary to law and evidence — to truth and justice.

“The court erred in overruling plaintiffs’ motion for a new trial.”

We are of opinion that the verdict for exemplary damages is not supported by sufficient evidence to sustain it. The burden was upon the defendant to show by evidence, reasonably sufficient to satisfy the mind, that plaintiffs’ agent acted maliciously in suing out the attachment, and to do so it must appear that he did so either from express malice relating to and directed against the defendant, or from malice which would be implied by law arising from the want of probable cause, or else that it was made to appear that he acted from some motive which the law would characterize as an improper one.

Clearly there is a want of evidence to show any personal malice or ill will on the part of Mayer which induced his action. Then, are the circumstances such, as from which malice would be implied for the want of probable cause? The ground of the attachment is, “That the defendant has disposed of his property in part with intent to defraud his creditors, and that he is about to convert a part of his remaining property into money for the purpose of placing it beyond the reach of his creditors.”

Does the whole evidence warrant the reasonable conclusion that Mayer did not believe the facts stated in the affidavit to be true, but that he sued out the writ regardless of and indifferent to the truth, in order to subserve a motive other than to avail himself of a faithful and honest use, in good faith, of attachment process, where it rightfully might be sought for? We cannot think it does.

“ Exemplary damages are allowed where a wrongful act is done with a bad motive; or so recklessly as to imply a disregard of social obligations; or where there is negligence so gross as to amount to misconduct and recklessness. If a wrong is done wilfully; that is, if a tort is committed deliberately, recklessly, or by wilful negligence, with a present consciousness of invading another’s right, or of exposing him to injury, an undoubted case is presented for exemplary damages. To enable a jury to exercise their discretion wisely for the purposes for which such damages are allowable, all the facts and circumstances which belong to the principal transaction and tend to develop its character should be submitted to them.

“These damages are allowable only where there is misconduct and malice, or what is equivalent to it. A tort committed by mistake, in the assertion of a supposed right, or without any such recklessness or negligence as evinces malice or conscious disregard of the rights of others, will not warrant the giving of any damages for punishment, where the doctrine of such damages prevails.” 1 Sutherland on Dam., 724. “That which is done contrary to one’s conviction of duty, or with a wilful disregard of the rights of others, whether it be to compass some unlawful end, or some lawful end by unlawful means, or to do a wrong and unlawful act, knowing it to be such, constitutes legal malice.” Drake on Attach., sec. 733.

These elements for the maintenance of an action for exemplary damage clearly constitute the belief and intentions of the wrongdoer a controlling ingredient; therefore, although there may not exist good cause for suing out an attachment, yet, if the evidence concerning all the circumstances attending it are consistent with and show that it was sued out under an honest belief of the truth of the grounds relied on, based on reasonable grounds, the inference of malice, which would otherwise arise, is repelled, and no recovery for exemplary damages could be had. See Culbertson v. Cabeen, 29 Tex., 256; and see Drake on Attach., secs. 733-738.

Such belief, however, as will thus protect against the consequences.' of wrong, where that belief has been acted on in suing out wrongfully an attachment, must have had a reasonable basis for its existence ; there must be some reason for believing the grounds to be 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, secs. 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 his creditors he had paid with the proceeds of the sale; distrusting, apparently, the truth of the statement of defendant that he had applied the proceeds to the payment of his creditors.

[Opinion approved November 14, 1884.]

His opinion seems also to have been influenced by the fact that the defendant at that time was closing out his stock at cost, and admitted that he intended to sell out his entire stock and quit business.

These circumstances, connected with the fact that the defendant’s stock of goods was not of much more value than the plaintiffs’ debt, and that defendant owed $3,500 or $4,000, according to the evidence; that defendant had not offered to pay plaintiffs anything from his cattle sale; suspecting, perhaps, that defendant had money arising from sale of cattle and of goods which he had been selling and failed to agree to pay him at that time anything on account of his debt, and, perhaps, doubting his ability or inclination to secure his debt, may reasonably have led him to believe, however erroneous in fact his conclusion may really have been, that all the facts stated by him in his affidavit were true.

In addition to these circumstances, tending to rebut the inference of malice by showing that in fact he may reasonably have believed the grounds of the attachment to be true, there are other circumstances to be considered tending also to rebut the inference of malice, and which strengthen still further the evidence in the plaintiffs’ favor.

Mayer went first to Fort Worth and took the advice of counsel, in pursuance of which he went to the defendant with the intention, seemingly in good faith, to obtain security for the debt and extend time instead of proceeding immediately by attachment. The next day he returned to Fort Worth and submitted the facts to his attorney and was advised to proceed at once by attachment.

“The advice of counsel, as to acts usually thus influenced, is admissible, at least to prevent exemplary damages.” 1 Sutherland on Dam., 747, citing numerous authorities.

We think that the verdict for exemplary damages is not sufficiently supported by evidence, and, acting upon the rule applicable to new trials by the supreme court, as stated in Houston & T. C. R’y Co. v. Schmidt, 61 Tex., 286; Chandler v. Meckling, 22 Tex., 42; G., H. & S. A. R. Co. v. Bracken, 59 Tex., 71, we conclude that the judgment ought to be reversed and the cause remanded.

Reversed and remanded.  