Alexander v. Hutchison , 9 Ala. 825 ( 1846 )

ORMOND, J.

In Kirksey v. Jones, 7 Ala. 622, the question presented upon the record was elaborately considered by this court, and it was then held, “that whenever an attachment is wrongfully sued out, and damage is thereby caused to the defendant in the suit, he is entitled to recover for the actual injury sustained, by force of the statutory provision.” If in addition to- being wrongfully sued out, that is, if the facts do not exist which are the alledged cause for resorting to this extraordinary remedy, it is maliciously, or vexatiouSly sued out, it will aggravate the damages.

It is evident from this statement, that the court erred in its charge to the jury, which is in effect, that if the attachment was sued out in good faith, upon the belief that the alledged cause existed, it was a defence to the action. The evident design of the legislature was, that one suing out an attachment, did so at his peril, and if the alledged cause for suing it out did not exist, he was answerable for all the injury thereby resulting to the defendant in attachment.

Let the judgment be reversed and the cause remanded.