The rule of the common law is, that a mere wrongful resort to legal process affords no ground of action. To support an action for the misuse or abuse of process, malice, and a want of probable cause, must concur. McKellar v. Couch, 34 Ala. 336; Benson v. McCoy, 36 Ala. 710. This rule probably subserves the ends of justice as to common law remedies, or the ordinary remedies pursued in courts of justice. An attachment is an extraordinary remedy, prescribed by the statute for extreme cases, and harsh in its operation. Its levy deprives the party against whom it issues as completely of the possession of his property, as the levy of final process founded on a final judgment. The nature of the remedy required that the party against whom it issues should have a more ample remedy against its misuse or abuse, than that which the common law afforded. The injury resulting from such misuse or abuse is more direct, and greater in degree, than that which follows the misuse or abuse of common law process, or of ordinary remedies. These do not authorize the seizure of property, nor do they involve imputations affecting more or less reputation and credit. Hence, the statutes of this State have always required, as a condition precedent to the suing out of an attachment, bond with sufficient security, in a pen
Tbe statute carefully defines specific causes, or particular grounds or facts, which will authorize this remedy. If no one of these exists, tbe attachment is wrongfully sued out, and tbe plaintiff is liable for tbe actual injury sustained, though be acted from tbe purest motives, and bad probable cause for believing facts existed, which justified a resort to tbe remedy. 1 Brick. Dig. 168, § 208. The statutes thus protecting the defendant against tbe misuse or abuse of tbe process, to avoid tbe delays incident to tbe introduction of collateral issues, not involving tbe merits of the controversy, and to give tbe suit tbe form, character and operation of, an ordinary suit, commenced by personal service of process, prohibit tbe denial, or putting in issue the cause for which tbe writ issúed. R. C. § 2992. Tbe action on tbe bond, for tbe,recovery of damages, being a plenary remedy for all tbe injury which could result, if the cause did not exist.
Tbis action is founded on an attachment bond, and the complaint avers only a wrongful, not a vexatious, suing out of tbe writ, and seeks a recovery of actual damages only. Tbe writ issued on the ground that tbe defendant was tbe tenant of tbe plaintiff, and bad removed from tbe rented premises a portion of tbe crop grown thereon, without paying tbe rent, and without tbe consent of tbe plaintiff. Tbe statute gives the “ landlord a lien on tbe crop grown on rented land for tbe rent for tbe current year,” and authorizes an attachment as a remedy for tbe enforcement of tbe lien. R. C. §§ 2961-2968. An affidavit of tbe special facts, and a bond as in other cases, is required as a condition on which tbe attachment may issue.
It is insisted by appellants that, on tbe trial of tbe attachment suit, tbe defendant therein could have denied or put in issue, the existence of the .relation o,f landlord and tenant, averred in tbe affidavit, and tbe fact that there was not rent due or accruing. As these facts could have been put in issue, in tbe attachment suit, their non-existence does not authorize a recovery in tbis action. Tbe cause for which an attachment issues, that cannot be made an issuable fact in tbe attachment suit, is not tbe relation existing between tbe plaintiff and tbe defendant, whether that relation is of landlord
The charge given by the court, to which an exception was reserved, and the charges refused, involve the same question. The proposition affirmed by the appellants, is, that the relation of landlord and tenant, exists between the vendor and vendee of real estate, when the vendee enters into possession, under an executory contract of purchase, and fails to make payment of the purchase-money at the time specified, and is liable for rent thereafter. The statement of the proposition, is its refutation. The relation of landlord and tenant subsists by virtue of an agreement, express or implied. The relation of vendor a"nd vendee, is wholly different in its incidents, and in the rights of liabilities of the parties. If the vendor has not parted with the legal title, and the vendee fails to pay the purchase-money, he has three remedies, all of which he may pursue at the same time, and cannot be compelled to elect between them. He may maintain ejectment on his legal title, — sue at law for the recovery of the purchase-money, — and proceed in equity for the enforcement of his lien for the purchase-money. Haley v. Bennett, 5 Port. 452; Duval v. McLoskey, 1 Ala. 708. If he has parted with the legal title, the vendee could not by possibility be treated as his tenant. If he has not parted with the legal title, treating the vendee as his tenant, liable for rent, would operate a destruction of the contract of purchase, and the substitution of a different contract the
The statute authorizing an attachment for rent, is framed in almost the identical language, certainly in language of the same signification, as the statute, giving a landlord a lien for rent, in priority of an execution against a tenant, levied on goods and chattels, found on the rented premises in possession of the tenant. R. C. § 2878. Each statute contemplated a tenancy from year to year, springing out of contract. It would scarcely be contended a vendor because of the vendee’s default in the payment of the purchase-money, could assert the statutory lien as against an execution creditor of the vendee.
The result is the judgment of the circuit court; must be affirmed.