Burnap v. Albert

4 F. Cas. 761

• Court: U.S. Circuit Court for the District of Maryland
• Decided: April 15, 1855
• Status: Published

Opinion

TANEY, Circuit Justice.

1. The plaintiff is not entitled to maintain this action, unless the proceedings of which he complains were without probable cause, and also malicious on the part of the defendants; but the want of probable cause would be evidence of malice, to be weighed by the jury in connection with the other evidence in the case.

2. If the jury find that Miller, being indebted to the defendants and others, assigned his property to the plaintiff, in trust for his creditors, there was probable cause for instituting the suit mentioned in the declaration; and no action will lie against the defendants for the institution of the suit

3. If the ne exeat which was afterwards obtained, and the imprisonment of the plaintiff, were procured by Marsh, or Marsh & White, without probable cause, and from malice to the plaintiff, the defendants are not responsible in this action, for these pets of their counsel, unless directed by them, nor for the motives by which they were governed.

4. But if the defendants-afterwards refused to stay these proceedings, or discharge the party from imprisonment, from the desire to obtain thereby, unjustly, any pecuniary advantage to themselves, and knew or believed, at the time of their refusal, that such proceedings and imprisonment had been procured maliciously and without any-probable cause, then they are liable to this action.

5. If, however, in refusing to interfere, they were actuated by honest motives, seeking and desiring, by legal means, to recover money which they believed to be due to them, and were guided in their course by the advice of counsel, whom they believed to be trustworthy, then this action cannot be maintained. The plaintiff, being called, made default. Judgment of nonsuit.