McCullough v. Walton

GOLDTHWAITE, J. 1. By referring to the statement of the case, it will be seen the attachment was sued out by one of the obligors in the bond as the agent of Madegan &. Devon, and at their suit. The declaration alledges the attachment was wrongfully and vexatiously sued out by the defendants tothis suit; and hence the question arises on the demurrer, whether these parties are answerable on the bond given by them, unless it is shown the attachment was wrongfully or vexatiously sued out by Madegan & Devon. Our statutes allow this process to be sued out by an agent, or attorney, as well as by the plaintiff in person, but in either event the cautionary bond is the same. Its condition is, that the plaintiff shall prosecute his attachment to effect, and pay the defendant all such costs and damages as he may sustain by the wrongful or vexatious suing out of the attachment. We think it very clear, that the object in requiring 496 this bond to be given was, to furnish the defendant in attachment with an adequate security against any costs, or damages he should sustain from the wrongful or vexatious act of the plaintiff, and there is nothing in the terms of the bond, or of the enactment, which prescribes it, to indicate it was also intended as a security against the malicious act of the agent. In Herndon v. Forney, 4 Ala. Rep. 243, and Hill v. Rushing, Ib. 213, we had occasion to consider the subject of suits on these bonds to some extent, and in that last named, held, that whenever the injured party sued directly on the bond, instead of pursuing the plaintiff in attachment, by action on the case, the suit in all respects was governed by the rules applicable to that action. We do not question that a party injured by the unlawful or wrongful act of an agent, may have a direct action against the agent or his principal, but it is only as to the latter that the statutory bond stands as a security. This will be evident if we suppose several actions against the plaintiff and the agent, and after a recovery, the attempt to enforce the bond, on the ground that the judgment against the latter was unpaid. Again, suppose the agent acting maliciously, and the plaintiff in the attachment merely wrongfully, could it be asserted that he, or the obli-gors in the bond, were bound to answer the malicious act ? The decision of this court in Kirksey v. Jones, 7 Ala. Rep. 622, contains a decisive answer to the last question. We there,held, that a plaintiff in attachment was responsible for the actual damages sustained by the wrongful suing out of an attachment by an agent, and that he would not be responsible in any greater degree, if his agent was influenced by malicious motives. It is true, the case last cited, was the ordinary action on the case, but as the action on the statutory bond is governed by the same rules, the decision is entirely applicable to the case in hand. The decision made in Alexander v. Hutchinson, 9 Ala. Rep. 825, has no immediate bearing on the point we are now considering, as there, the plaintiff in the attachment sued it out in person, and we held, as in Kirksey v. Jones, that the mere belief in the existence of probable cause, was no justification for wrongfully suing out the process. It is obvious from what appears in this cause, that it is presented as if the act of the agent, in 497 suing out the attachment was the act intended to be litigated, and in this view we think the declaration is bad. The only questions which can arise in a suit on a bond like this, is whether the plaintiff wrongfully or vexatiously sued out this attachment. If it was wrongfully sued out, then the plaintiff is responsible to the extent of the actual injury sustained, but if vexatiously also, the case is one for vindictive damages, only in the event that the plaintiff has wantonly or maliciously resorted to the process. The result of our examination on this point is, the reversal of the judgment, but the cause will be remanded as the declaration can be amended. It also renders it unnecessary for us to examine the charges requested, or refused, as what we have said here, and in the other cases referred to, is supposed to be sufficient for the future guidance of the cause. The question in regard to the evidence admitted against the objection of defendants, is unimportant in the present condition of the case, and therefore we do not consider it.