White v. Wyley , 17 Ala. 167 ( 1850 )

CHILTON, J.

The court below decided the points of law raised in this case upon the trial very correctly.

1. The cost in defending the suit in which the ancillary attachment was sued out, the plaintiff in that suit having failed, has no connection with the attachment. The ancillary attachment was but auxiliary to the main suit, and enabled the plaintiff to obtain a lien on property for the satisfaction of whatever judgment, he might recover. No issue of fact was raised or could have been raised by the defendant, as predicated upon the attachment. The grounds upon which it issued cannot by the terms of the statute authorising it he controverted so as to require proof. The argument of the plaintiff’s counsel, that we must intend the plaintiff was incited to greater diligence in making his defence, and therefore incurred more cost, from the fact that the attachment secured the ultimate payment of the judgment, should one be obtained, is unsound. We must intend that White would have paid the debt had the court so ordered and adjudged. Damage, the consequence of a contrary presumption, would neither be the legitimate, natural nor proximate result of the attachment. — Donnell v, Jones, 13 Ala. Rep. 490, and authorities (¿ted.

2. Proof of the previous proceeding instituted against the makers of the note and the return of non est, &c. was proper in mitigation of damages, since it tended to show the want of malice, and that the party in suing White, the endorser, was not actuated by improper motives. There is a marked difference in honestly and in good faith suing out an attachment under a mistake of one’s legal rights, and a wanton disregard of the rights of others. In Sharpe v. Hunter, 16 Ala. Rep. 765, this court held that if an attachment sued out in a case in which just grounds for its issuance exists, is abated on plea, for a defect in the affidavit, the party against whom it issued in a suit upon the bond is not entitled to recover the actual damage he has sustained. In the case before us, the objection is not to the regularity of the attachment or affidavit on which it issued, but the record shows that Price had lost his recourse on White as endorser of the note, yet it must be admitted that this loss of recourse resulted from a technical objection, and resulted under circumstances well calculated to admit of an honest difference of opinion as to White’s liability on his endorsement- Such being the case, we think the proof was clearly competent to go in mitigation to repel as far’ as it goes the existence of. malice or improper motive.— The case of Swigart v. Berks, adm’r, 8 S. & R. 305, is wholly unlike the present. In that case no question of malice was involved, but the effort was to show that a party considered no more due him than one hundred dollars, from the fact that he had instituted a suit on the same cause of action before a justice of the peace, whose jurisdiction did not extend to cases above one hundred dollars. But the plaintiff abandoned his case, and the court held the record of it improper testimony. It is manifest the case bears no analogy to the present.

Judgment affirmed.