Lee, J.
This is an action of trespass on the case, brought by Simon Leyser against Louis Lieberman, Joseph C. Mannheimer, NeillB. Field, Henry C. Lewis, and S. E. Ulman, in which the plaintiff charges in his declaration that the said defendants, on the first day of May, 1883, at the county of Socorro, and territory of New Mexico, not having good and reasonable or probable cause to believe that the said plaintiff had fraudulently disposed of his property so as to defraud and hinder his creditors, or was about to dispose of his property with such intent, but wrongfully, maliciously, and unlawfully contriving and intending to injure, harass, and oppress, did wrongfully, falsely, and maliciously procure or cause to be issued out of the district court of the second judicial .district in and for the county of Socorro a certain writ of attachment, at the suit of Lieberman & Mannheimer, whereby the sheriff was commanded to attach the goods, lands, and tenements of the plaintiff in a suit in said district court by the said Lieberman & Mannheimer for the recovery of a demand against the said Simon Leyser for the sum of $728; that said defendant Field caused said sheriff to levy said attachment upon a stock of goods and merchandise of the said plaintiff; that the plaintiff, in order to procure a release of said goods, was obliged to and did pay off said demand, though said debt was not yet due; that he was injured in his business; and that he had to pay out the sum of $1,000 in and about the premises for getting his property released; wherefore he demanded judgment against the defendants for $5,000. The defendants Lieberman & Mannheimer were not served with process, and did not appear. The other defendants pleaded not guilty to said declaration. A jury trial was had upon the issue thus formed, with the result of a verdict of not guilty as to all of said defendants who appeared except Neill B. Field, against whom a verdict was returned for the sum of $400. After a motion for a new trial had been overruled by the court below, judgment was entered upon said verdict against defendant Field, from which he appealed to this court.
The evidence is set out in the bill of exceptions. The following is a brief statement of the evidence of Leyser and Field: Leyser testified that he was engaged in the mercantile business; that he was responsible; he denies that he was about to dispose of his property with intent to hinder, delay, or defraud his creditors; that a day or two before the bringing of the attachment proceedings the defendant Field, as one of the attorneys of Lieberman & Mannheimer, came to him, and presented a bill for payment, in favor of said firm, for the sum of $728; that the claim was on an open account; that he refused to pay it for the reason that it was not due; that a day or two afterward suit was commenced by attachment; that the sheriff came with a writ, and levied upon his goods; that he paid off said claim in order to have his property released. The defendant Field testified that he was an attorney at law; that he received the claim for collection from Lieberman & Mannheimer; that he presented the same to the said Leyser, and demanded payment; that said Leyser refused, claiming that the account was not due; that he was informed that Leyser had been reported by the commercial agency as about to make a fraudulent assignment; that an attachment had already been commenced by one Staab, and that other claims were in the hands of other attorneys for collection; that he commenced attachment proceedings by direction of his clients; that he acted in good faith in'the premises; that he had no ill will against said Leyser, and did not desire to harass or oppress him. The appellant assigns some twenty-four grounds of error, but we do not deem it necessary to decide other than such points as we think decisive of the case.
malicious attachment: termination of attachment favorable to plaintOTnly^prLumptioni The errors to which we will direct our attention arise in the charge given by the court to the jury, and in certain instructions asked by the de_ v lendant and refused. The court below, ' in charge to the jury, submitted to them alike the questions of malice and probable cause as matters of fact to be determined by them, and did not instruct them as to what facts or circumstances would or would not constitute probable cause, though the defendant asked instructions to that effect, two of which are as follows: “(2) The court instructs the jury that the mere termination of the attachment suit in favor of plaintiff does not raise the presumption of want of probable cause for suing out the writ, nor can the jury presume that the defendant Field acted maliciously from this fact alone.” “(10) The court instructs the jury that the defendant Field had a right to act upon facts and circumstances brought to his knowledge through the usual and ordinary business channels, if he believed them to be true; and if such facts and circumstances were of such character, and came from such sources, that lawyers generally, of ordinary care, prudence, and discretion, would act upon them, under similar circumstances, believing them to be true, then such facts and circumstances, if believed by said Field to be true, will constitute probable cause.” The court refused to give these instructions, to which the defendant excepted, and thus raises the question upon which we think the case must be decided. The supreme court of theUnited States, in the case of Stewart v. Sonneborn, 98 U. S. 187, quite clearly sets forth the law in a case very similar to the one under consideration. In that case they refer to the ancient case of Farmer v. Darling, 4 Burrows (1791), where Lord Mansfield instructed the jury that, “the foundation of the action was malice, and that malice, either expressed or implied, and the want of probable cause, must both concur.” And, says the supreme court, “from 1766 to the present day, such has been the law both of England and this country, and the existence of malice is always a question for the jury.” Malice, it is admitted, may be inferred by the jury from the want of probable cause. But the want of probable cause can not be inferred from any degree of even expressed malice, but what amounts to probable cause is a question of law, in a very important sense. In the celebrated case of Sutton v. Johnson, the rule was thus laid down: “The question of probable cause is a question of law and fact. "Whether the circumstances alleged to show probable cause are true, and exist, is a matter of fact; but supposing them to be, whether they amount to probable cause, is a question of law.” This doctrine is generally adopted. McCormick v. Sisson, 7 Cow. 715; Besson v. Sutherland, 10 N. Y. 236; Barron v. Mason, 31 Vt. 189; Driggs v. Burton, 44 Vt. 124; Stewart v. Sonneborn, 98 U. S. 194. “It is,” says the supreme court in the last case cited, “the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury itseredibility, and what facts it proves, with instructions that the facts found amount to probable cause, or it does not.” What facts or circumstances will when proven, authorize the court to instruct the jury, if they find such facts and circumstances to be true, what will constitute probable cause, must, in the nature of things, vary with every different case; but there are some general principles that underlie all cases, and frequently, when applied, will settle the case in question.
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Lee, J.
This is an action of trespass on the case, brought by Simon Leyser against Louis Lieberman, Joseph C. Mannheimer, NeillB. Field, Henry C. Lewis, and S. E. Ulman, in which the plaintiff charges in his declaration that the said defendants, on the first day of May, 1883, at the county of Socorro, and territory of New Mexico, not having good and reasonable or probable cause to believe that the said plaintiff had fraudulently disposed of his property so as to defraud and hinder his creditors, or was about to dispose of his property with such intent, but wrongfully, maliciously, and unlawfully contriving and intending to injure, harass, and oppress, did wrongfully, falsely, and maliciously procure or cause to be issued out of the district court of the second judicial .district in and for the county of Socorro a certain writ of attachment, at the suit of Lieberman & Mannheimer, whereby the sheriff was commanded to attach the goods, lands, and tenements of the plaintiff in a suit in said district court by the said Lieberman & Mannheimer for the recovery of a demand against the said Simon Leyser for the sum of $728; that said defendant Field caused said sheriff to levy said attachment upon a stock of goods and merchandise of the said plaintiff; that the plaintiff, in order to procure a release of said goods, was obliged to and did pay off said demand, though said debt was not yet due; that he was injured in his business; and that he had to pay out the sum of $1,000 in and about the premises for getting his property released; wherefore he demanded judgment against the defendants for $5,000. The defendants Lieberman & Mannheimer were not served with process, and did not appear. The other defendants pleaded not guilty to said declaration. A jury trial was had upon the issue thus formed, with the result of a verdict of not guilty as to all of said defendants who appeared except Neill B. Field, against whom a verdict was returned for the sum of $400. After a motion for a new trial had been overruled by the court below, judgment was entered upon said verdict against defendant Field, from which he appealed to this court.
The evidence is set out in the bill of exceptions. The following is a brief statement of the evidence of Leyser and Field: Leyser testified that he was engaged in the mercantile business; that he was responsible; he denies that he was about to dispose of his property with intent to hinder, delay, or defraud his creditors; that a day or two before the bringing of the attachment proceedings the defendant Field, as one of the attorneys of Lieberman & Mannheimer, came to him, and presented a bill for payment, in favor of said firm, for the sum of $728; that the claim was on an open account; that he refused to pay it for the reason that it was not due; that a day or two afterward suit was commenced by attachment; that the sheriff came with a writ, and levied upon his goods; that he paid off said claim in order to have his property released. The defendant Field testified that he was an attorney at law; that he received the claim for collection from Lieberman & Mannheimer; that he presented the same to the said Leyser, and demanded payment; that said Leyser refused, claiming that the account was not due; that he was informed that Leyser had been reported by the commercial agency as about to make a fraudulent assignment; that an attachment had already been commenced by one Staab, and that other claims were in the hands of other attorneys for collection; that he commenced attachment proceedings by direction of his clients; that he acted in good faith in'the premises; that he had no ill will against said Leyser, and did not desire to harass or oppress him. The appellant assigns some twenty-four grounds of error, but we do not deem it necessary to decide other than such points as we think decisive of the case.
malicious attachment: termination of attachment favorable to plaintOTnly^prLumptioni The errors to which we will direct our attention arise in the charge given by the court to the jury, and in certain instructions asked by the de_ v lendant and refused. The court below, ' in charge to the jury, submitted to them alike the questions of malice and probable cause as matters of fact to be determined by them, and did not instruct them as to what facts or circumstances would or would not constitute probable cause, though the defendant asked instructions to that effect, two of which are as follows: “(2) The court instructs the jury that the mere termination of the attachment suit in favor of plaintiff does not raise the presumption of want of probable cause for suing out the writ, nor can the jury presume that the defendant Field acted maliciously from this fact alone.” “(10) The court instructs the jury that the defendant Field had a right to act upon facts and circumstances brought to his knowledge through the usual and ordinary business channels, if he believed them to be true; and if such facts and circumstances were of such character, and came from such sources, that lawyers generally, of ordinary care, prudence, and discretion, would act upon them, under similar circumstances, believing them to be true, then such facts and circumstances, if believed by said Field to be true, will constitute probable cause.” The court refused to give these instructions, to which the defendant excepted, and thus raises the question upon which we think the case must be decided. The supreme court of theUnited States, in the case of Stewart v. Sonneborn, 98 U. S. 187, quite clearly sets forth the law in a case very similar to the one under consideration. In that case they refer to the ancient case of Farmer v. Darling, 4 Burrows (1791), where Lord Mansfield instructed the jury that, “the foundation of the action was malice, and that malice, either expressed or implied, and the want of probable cause, must both concur.” And, says the supreme court, “from 1766 to the present day, such has been the law both of England and this country, and the existence of malice is always a question for the jury.” Malice, it is admitted, may be inferred by the jury from the want of probable cause. But the want of probable cause can not be inferred from any degree of even expressed malice, but what amounts to probable cause is a question of law, in a very important sense. In the celebrated case of Sutton v. Johnson, the rule was thus laid down: “The question of probable cause is a question of law and fact. "Whether the circumstances alleged to show probable cause are true, and exist, is a matter of fact; but supposing them to be, whether they amount to probable cause, is a question of law.” This doctrine is generally adopted. McCormick v. Sisson, 7 Cow. 715; Besson v. Sutherland, 10 N. Y. 236; Barron v. Mason, 31 Vt. 189; Driggs v. Burton, 44 Vt. 124; Stewart v. Sonneborn, 98 U. S. 194. “It is,” says the supreme court in the last case cited, “the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury itseredibility, and what facts it proves, with instructions that the facts found amount to probable cause, or it does not.” What facts or circumstances will when proven, authorize the court to instruct the jury, if they find such facts and circumstances to be true, what will constitute probable cause, must, in the nature of things, vary with every different case; but there are some general principles that underlie all cases, and frequently, when applied, will settle the case in question. For instance, in this case the conduct of the defendant is to be weighed in view of what appeared to him when he filed the proceedings in attachment; not what the facts proved to be afterward, but had he reasonable cause for his action when he took it. Not what the actual fact was, but what he had reason to believe it was. Faris v. Starke, 3 B. Mon. 4; Raulston v. Jackson, 1 Sneed, 128. If the defendant acted in good faith, with an honest purpose to collect a just claim for his clients, the mere wrongful resort to legal process affords no ground of action. It is damnum absque injuria. And further than the cost, which is the legal penalty for bringing a groundless suit, there could be no other damages. McKellar v. Cranch, 34 Ala. 336. The misuse of legal process in a civil proceeding must have been wrongful, corrupt, and malicious; for if the defendant had an honest and reasonable conviction that Leyser was justly indebted to his clients for the claim he held for collection against him, and it was reported, and he believed the report to be true, that plaintiff was about to make a fraudulent assignment of his property, he had a right to act upon facts and circumstances brought to his knowledge through the usual and ordinary business channels, if he believed them to be true; and if such facts and circumstances were of such character, and came from such sources, that lawyers generally, of ordinary care, prudence, and discretion, would act upon them, under similar circumstances, believing them to be true, then such facts and circumstances, if believed by Field to be true, would be probable cause for instituting the attachment proceedings, and if such facts were found by the jury to be true his defense would have been complete. And we think the court erred in not giving instruction number 10 asked for by defendant, which is hereinbefore set forth.
malick: probable cause: evidence. The defendant also asked the court to instruct the jury that the mere termination of the attachment proeeedings in favor of the plaintiff does not rajse presumption of want of probable cause. The supreme court, in the case before referred to, holds, in every case of an action for malicious prosecution or suit, it must be averred and proved that the proceeding instituted against the plaintiff has failed; but its failure has never been held to be evidence of either malice or probable cause. The same is held in Cloon v. Gerry, 13 Gray, 201; Adams v. Lisher, 3 Blackf. Rep. 445. The instruction was a fair and clear expression of the law material to the defendant, and it should have been given; and it was error to refuse it.
Having come to the conclusion that this case must be reversed, we do not give any opinion upon the other points raised.' The judgment will be reversed, and the cause remanded for a new trial.
Long, C. J., and McFie and Whiteman, JJ., concur.