Dickson v. Bachelder

LIGON, J. — It is contended, that the demurrer to the declaration was rightly sustained, for two reasons: First, because the attachment bond set out in the declaration, and that read on oyer, are essentially variant in this: that in the former it [704] is recited in the condition, that “ Robert Cornell and Charles Cornell had, on the day of the date of said writing obligatory, prayed an attachment at the suit of said Robert and Charles Cornell, merchants and partners, using the name of Cornell & Brother,” while in the bond read on oyer it is recited, that “ John J. Steiner hath, on the day of the date hereof, prayed an attachment at the suit of Robert and Charles Cornell, merchants and partners, using the name of Cornell & Brother.” We do not think that this is a material variance, for these recitals do not form an essential portion of the condition of the bond; especially that part of them which recites the name of the person who applied for the issue of the attachment. The essential part of the condition of this bond, and that for a breach of which alone an action will accrue to the plaintiff, is the same both in the declaration and bond, and is in these words: “Now, if the said plaintiff shall prosecute his attachment to effect, and pay the defendant all such damages as he may sustain by the wrongful or vexatious suing out of said attachment, then this bond to be void; otherwise, to remain in full force and virtue.” If this portion be correctly set out and averred in the declaration, with the style of the attachment suit in which the bond was given, and the court and term to which it was made returnable, it is wholly immaterial whether any other portion of the recitals of the bond be sef out at all; and if an attempt is made to set them out, and a variance occurs, it is no ground for demurrer. All that can be required of the pleader is, to set out the bond sued on according to its legal effect, and that is sufficiently done in this case. 2. Another variance which is supposed to be fatal is, that the declaration proceeds on the bond as a bond given for an ancillary attachment, whereas, the bond set out on oyer is, in form and substance, a bond for an original attachment. This, we apprehend, can avail the defendant nothing; for the same bond, both in form and substance, is required by law to be given, whether the attachment be original or ancillary, and an attachment sued out under the act of 1837, as auxiliary to a pending suit, need not allege the pendency of the suit. Clay’s Dig. 61, § 34; Hounshell v. Phares, 1 Ala. 580. 3. Independent of these supposed variances, it is urged [705] that tbe breach laid in the declaration is not broad enongb, and does not sufficiently negative the performance of the condition of the bond, to authorize the plaintiff to recover. The declaration distinctly avers, “ that said attachment, so sued out as aforesaid, was wrongfully sued out; that by such wrongful suing out of said attachment said plaintiff has sustained damage,” &c., going on to lay special damages. This is quite sufficient; since, in suits upon an attachment bond, for the purpose of recovering the actual damages sustained by reason of the wrongful suing out of the writ, it is only necessary to aver that such writ was wrongfully sued out. In such a suit vindictive damages cannot be given, and the question of malice in procuring the writ cannot arise. It is not, therefore, necessary in the declaration either to negative the ground on which the writ was sued out, or to aver that it was done vexatiously or maliciously. Wilson v. Outlaw, Minor, 367; 4 Ala. 212 ; Herndon v. Forney, ib. 243; McCullough v. Walton, 11 Ala. 492; Jones v. Kirksey, 7 Ala. 622. We think the Circuit Court erred in sustaining the demurrer; its judgment is, therefore, reversed, and the cause remanded.