Stewart & Hudson v. Cole & Son, 46 Ala. 646

46 Ala. 646 | Ala. | 1871

PETERS, J.

This is an action for damages founded on an attachment bond. The appellees in this court were the plaintiffs in the court below. The cause was tried by a jury. There was a verdict for the plaintiffs for one hundred dollars, and judgment was rendered for this sum and costs. From this judgment the appellants, who were the defendants in the court below, bring the case here by appeal.

A creditor who seeks to proceed in the collection of his debt by the use of the harsh process of attachment, undertakes to show that some one of the causes which would authorize the issuance of an attachment “exists.” — Revised Code, §§ 2928, 2930. If he fails to do this, the attachment is wrongfully sued out, and if the property of the defendant is seized under authority of process thus issued, it is in effect a trespass and an illegal invasion of the defendant’s rights of property; for which the party causing the attachment to be sued out is responsible to the amount of the damages inflicted. — Kirksey v. Jones, 7 Ala. 622, 626 ; Rev. Code, § 2931. In case there is no malice, when the suit is on the attachment bond, as is the case here, the recovery must be confined to the actual damages; but if there is malice on the part of the attaching creditor against the debtor, then the jury may go beyond the actual damages and give smart money, by way of punishment for the malicious as well as the wrongful use of the process. Floyd v. Hamilton, 33 Ala. 237, 235. The ground relied upon to justify the attachment in this case was the fifth of those enumerated in the Revised Code, which is this: “ When the defendant is about to remove his property out of the State, so that the plaintiff will probably lose his debt or have to sue for it in another State.” — Rev. Code, § 2928, cl. 5. There was evidence tending to show that the defendants in the attachment suit, who are the plaintiffs in the suit on the bond, had sufficient means in this State to pay all their debts; that they were merchants, doing business in the county of Blount in this State, and that Decatur was their shipping point on the railroad. It was also shown that the cotton attached was intended to be sent out of this State, to the city of Memphis, in the State of Tennessee, where the owners traded, for the purpose of finding a market there, and this was the usual course of trade from said county of Blount. Upon this evidence, among other things, the court charged the jury on the plaintiff’s motion, that, “the shipment of the cotton without the State did not authorize the issuance of an attachment." There was no error in this charge. If the purpose of the shipment of the cotton was for the. honest ends of trade, its shipment from the State for this purpose could not be prevented by attachment. The removal can only be prevented in this way when the plaintiff will probably lose his debt thereby, or have to sue for it in another State. All these circumstances are required to exist' before the issuance of an attachment will be justified. — Rev. Code,. § 2928, cl. 5, § 2930.

The charge asked by the defendants in the court below,, in reference to malice, was abstract. There was no pretense in the proof that malice was relied on to increase the damages. The charge, had there been evidence to support it, would have been a proper charge. The malice in such a ease which may be given in evidence to increase the damages, should be malice against the defendant in the attachment suit. But no evidence of this sort is shown in the record.

I am unable to perceive that the other objections raised on the assignment of errors are well founded.

The judgment of the court below is, therefore, affirmed.