There was no error in overruling the defendant’s motion to quash the attachment. The petition stated the debt distinctly from the demand for attorney’s fees, and, for the former only, prayed the process of attachment. The bond was in double the sum for which the attachment was asked and issued. For all the demand he was not required to attach. Evans v. Lawson, 64 Tex. 199.
The fourth, fifth, sixth and seventh special charges requested by appellee, directed the jury how to ascertain whether the attachment was wrongfolly sued out or not. On this issue the jury found for appellee, and, of course, he sustained no injury by the refusal of these instructions.
Appellee’s tenth special charge was a definition of probable cause. This expression has about the same signification in the law that it has in common parlance, and it is not certain that any attempt to elucidate it does not tend to mystification. In the charge of the court the right of appellee to recover exemplary damages was made to depend on malice alone, regardless of probable cause. The jury were instructed that they might infer malice from the absence of probable cause, and this is the only instance in which the expression is used in the charge. For this incidental purpose there was no need to dignify the phrase by a long definition.
The court did not err in refusing the appellee’s motion for new trial. Within less than ten days the property attached was replevied, and, whilst in the nominal custody of the sheriff, the testimony tended to show that the defendant was not deprived of its use. The appellant was entitled to the benefit of this proof without a special plea. The defendant was claiming the value of the use of this propperty, on a charge that he was deprived of the use; and that he was not, is simply the negation of his claim. The damages allowed fully cover the injuries done by appellant’s mistake. That he did not act oppressively or maliciously, the jury determined upon ample warrant from the evidence.
There was error in the refusal of the court to foreclose the attach-*435meat lien. It was held in Cloud v. Smith, 1 Tex. 611, that the affidavit could not be traversed in the abatement of the writ. The writ is authorized, not upon a given state of facts, but upon an affidavit to certain facts. The validity of the writ depends, not upon the truth of the facts stated in the affidavit, but upon the fact that they are so stated. The bond protects the defendant. The injury done him is compensated in the damage he recovers. The plaintiff, in the terms prescribed by law, in the bond, has contracted with the defendant for his remedy. He expiates in advance the possible wrong he may do the defendant. Ever since the decision of Cloud v. Smith, it has been the practice to give the plaintiff the benefit of his lien, and leave the defendant to his remedy on the bond. The defendant in this case has recovered his damages in a credit on the plaintiff's demand, and the plaintiff was entitled to a foreclosure of his attachment lien.
The judgment of the court below will be reformed so as to foreclose the plaintiff's lien, and in all other respects the judgment is affirmed, and it is so ordered.
Reformed as to Part, AND IN ALL OTHER RESPECTS AFFIRMED.
[Opinion delivered February 5, 1886.]