| Ala. | Jun 15, 1842
In the case of Herndon v. Forney, at the present term, we determined the principal question arising in this case, in favor of the plaintiff in error. The only differences between this case and that are that this is an action of covenant, and that here the breaches of the condition of the bond are assigned in the declaration.
1. We cannot perceive that any substantial reasons exist against allowing the action of covenant in such a case as this, when the plaintiff chooses to select it in preference to the action of debt. In either case, under our practice, he must assign breaches, and can only recover the actual damages made out by the evidence.
2. With respect to the breaches, we think they are substantially good. It will be seen that the aggregate of the damages alledged to have been sustained, exceeds the penalty of the bond, therefore it was not improper to confine the averments with respect to the non-payment of damages to the amount of the penalty. It would be proper, in a case where the damages alledged to have been sustained do not amount to the penalty, to alledge the breach in the non-payment of the damages thus
• We may remark further, that the effect of our decision in the case of Herndon v. Forney, as well as the one now pronounced, is, that whenever the defendant in an attachment selects his remedy on the attachment bond in preference to his action on the case against the plaintiff in the attachment, for wrongfully or vexatiously suing it out, the former suit is to be governed, in all respects, by the rules applicable to the action on the case, except the recovery, which of course cannot exceed the penalty of the bond.
This leads to the conclusion that the judgment of the Circuit Court, on the demurrer, is erroneous.
Let it be reversed and the cause remanded.