majority">Wagner, Judge,

delivered the opinion of the court.

This case was an action for a malicious attachment, and it appears from the record, that the defendants brought the suit against the plaintiff in the name of one Toll, for a balance of five hundred dollars alleged to have been due on a promissory note. Before a trial was had, they dismissed the proceedings. The petition in this case averred, that the defendants were not employed nor authorized by Toll to bring the suit, and that the note, on which it was founded, was paid off. In their answer the defendant set up, that Toll did authorize and employ them to bring the suit.

Toll was examined as a witness, who stated that the note was paid shortly after it became due, and that he did not know the defendants, had no acquaintance with them, and never employed them to commence the action. Defendants both testified that Toll did not employ them, but the note was handed *322to them by some other person, and that they had no malice or unfriendly feeling against the plaintiff.

Upon this evidence, the court, at Special Term, declared that the plaintiff could not recover. Plaintiff then took a non-suit, and the court refusing to set the same aside, an appeal was taken to the General Term, where the judgment was reversed, and the defendants have brought the case here.

• We think the trial court clearly erred. It is true the.plaintiff showed no express malice on the part of the defendants, nor was such proof necessary. It may be inferred from want of probable cause, and the whole question should be submitted to the jury under proper instructions, aud they may look at all the circumstances in making up their verdict.

The case should have been submitted to the jury, where all the facts aud circumstances could have been taken into consideration, and the judgment at General Term will be affirmed. All the judges concur, except Judge Tories, who is absent.

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