McLane v. McTighe

• Citation: 8 So. 70,89 Ala. 411
• Parties: MCLANE v. MCTIGHE ET AL.
• Decision Date: 16 June 1890
• Court: Supreme Court of Alabama

8 So. 70

89 Ala. 411

MCLANE v. MCTIGHE ET AL.

Supreme Court of Alabama

June 16, 1890

Appeal from city court of Selma; JONATHAN HARALSON, Judge.

Pettus & Pettus, for appellant.

Gaston A. Robbins, for appellees.

CLOPTON J.

The bond on which appellant sues was made by appellees to procure the issue of an attachment sued out by J. H. McTighe & Co. against his estate, for the sum of $2,046.78; and is conditioned that the plaintiffs in the attachment shall prosecute the same to effect, and pay the defendant therein all such damages as he may sustain by the wrongful or vexatious suing out of the attachment. The complaint, as originally framed, contained two assignments of breach. A demurrer thereto having been sustained, it was amended by striking out the first assignment. A demurrer interposed to the complaint as amended was also sustained. The assignments of error only relate to the ruling of the court on the last demurrer, the grounds being- First, that the complaint fails to aver that the writ of attachment was sued out without probable cause for believing the facts stated in the affidavit to be true; Second, that it does not set forth the facts constituting the breach of the condition of the bond. The rule stated in Durr v. Jackson, 59 Ala. 203, that in an action on an attachment bond, in order to show a sufficient breach, "it is necessary for the plaintiff to aver in his complaint the falsity of the particular fact or facts which may be stated in the affidavit as the ground of attachment," is not of universal application. Though one of the statutory grounds for attachment may exist, if there is no debt or demand to enforce the collection of which an attachment is authorized the condition of the bond is broken, and the obligee is entitled to recover in an action thereon such actual damages as he may have sustained. Lockhart v. Woods, 38 Ala 631; Durr v. Jackson, supra. In Bank v. Jeffries, 73 Ala. 183, it is said: "To justify an attachment there must be a debt due or to become due, and one of the enumerated statutory grounds for attachment must exist. If either of these be wanting in fact, no matter how sincerely the attaching creditor may believe it to exist, then the attachment is wrongful, but, without more, only wrongful. In such case, the measure of recovery, in a suit on the bond, is the actual injury sustained." The breach assigned is that the attachment was wrongfully and vexatiously sued out and that the plaintiff in the present action was not, at the time it was sued out, indebted to the plaintiffs in attachment in the sum of...