O'Grady v. Julian

34 Ala. 88

Opinion

STONE, ,T.

In receiving proof of “ what was the usual profit made by. such establishments in the neighborhood of the plaintiff in the same kind of business,” the city court clearly erred. Such testimony could furnish no reliable data for determining the loss sustained by plaintiff; while its tendency was to multiply the issues before the jury almost indefinitely. — Gilmer v. City Council, 26 Ala. 665-9; Hubbard v. And. and Ken. R. R. Co., 39 Maine, 506; Standish v. Washburn, 21 Pick. 237; Heywood v. Decreet, 4 Gray, 111.

[2.] There are some embarrassments thrown around the second exception of the appellant. The plaintiff below, against the objection of the defendant, was permitted to ask a witness, “what was the effect of the issue of said attachment, and the seizure and levy under the same, upon the business and credit of the plaintiff?” After this question was objected to, the plaintiff' stated that he did not call for the opinions of the witness, but only for his knowledge. This renders it unsafe to announce any opinion adverse to the legality of the question, as it was certainly the right of the plaintiff' to prove by witnesses all actual damage they knew he had sustained from the issuance and levy of the attachment. The answer given was not excepted to. — See Donnell v. Jones, 13 Ala. 490. This question will probably not again arise in the form now presented.

[3.] The charge of the .court, “that in this action, it devolves on the defendant to sustain the truth of the affidavit which he made in the attachment suit, and not on the plaintiff to show it untrue,” as also the refusal of the court to give the charge asked by the defendant, raise the question of onus in actions such as this. We Lave not been referred to any decision which sustains this view, nor have we found any.

The analogy between suits like the present, and suits for malicious prosecution, is very striking. — See Wilson v. Outlaw, Minor’s Rep. 367; Kirksey v. Jones, 7 Ala. 622. In 2 Greenlf. Evidence, § 454, it is said: “The want of probable cause is a material averment, and though negative in its form and character, it must be proved by the plaintiff, by some affirmative evidence; unless the defendant dispenses with this proof, by pleading singly the truth of the facts involved in the prosecution.” — See, also, 1 Greenl. Ev. §§ 80, 81, 78; Drake on Attachments, §§ 729, et seq.

Under this rule, the onus was on the plaintiff to give some evidence to the jury of the falsity of the affidavit, or of circumstances from which that body could infer its falsity, before the defendant could be called on to sustain the truth of his affidavit. The plaintiff’s right to recover depended on the vexatious or wrongful use of the process; and to make this out, the laboring oar was, in the first instance, with him.

Judgment of city court reversed, and cause remanded.