Flanagan v. Gilchrist , 8 Ala. 620 ( 1845 )

GOLDTHWA1TE, J

The question involved here has reference to the manner in which a breach of the condition of an attachment bond shall be assigned, when debt is the form of action. In Herndon v. Forney, 4 Ala. Rep. 243, we determined that such an action was proper, although the damages sustained by the obli-gee had not been ascertained in an action on the case against the person suing out the attachment; but then there was no necessity to determine how the pleadings should be. In the subsequent case of Hill v. Rushing, lb. 212, the action was covenant, under similar circumstances, and the breaches then assigned were considered sufficient. In that suit, the declaration averred that the attachment had been sued out without any good and sufficient reason, and for wrongful and vexatious purposes; and that the plaintiff thereby had sustained,damages to a specific amount, by reason- of his slaves being levied on; also, in his having been compelled to pay costs, and employ counsel to defend- himself from the attachment, and to regain his slaves; also, in his credit, which had been greatly injured. We further considered, that the action upon the bond was to be governed in all respects by the rules applicable to an action on the case, except that the recovery could not exceed the penalty of'the bond.

In the case under consideration the breach is assigned, nearly in the words of the condition; but there is no averment that the attachment was either wrongfully or vexatiously sued out; nol-is there a like averment that damages have resulted to the plaintiff from wrongfully or vcxatiously suing it out. In our judgment the declaration is defective in both these particulars.

The general rule with respect to the assignment of breaches, is that they may be assigned by negativing the terms of the condition, but this is only when the performance does not depend upon some other event; whenever it does that'eventmust be averred. Thus, it is said, that in debt upon a bond, conditioned that one should render an account of monies received, it should bo averred that he did receive monies, and that he did not render an account of such monies. [1 Chitty’s Plead. 326.] This seems decisive to show, that the averment that the defendant has not paid the costs and damages which the plaintiff has sustained by the wrongful or vexatious suing out of the attachment is defective, without averring that the attachment was sued out with that purpose; or that damages have resulted from it.

We think the demurrer was properly sustained, as the declaration does not conform to these views. Judgment affirmed.