Thompson v. Gates , 18 Ala. 32 ( 1850 )

PARSONS, J.

An original attachment was sued out iu favor of Hezekiah Gates against the estatd of one Gurley, returnable to the Circuit Court of Mobile. George B. Gates tvas the plaintiff’s surety in the bond required by the statute to obtain the attachment. The attachment was levied on certain personal property as the property of the defendant in the attachment. This was claimed by Thompson, the plaintiff in error; an issue was made for the trial of the right of this property between the plaintiff in attachment and Thompson, and the verdict was in Thompson’s favor. The court below decided that there could be no judgment against George B. Gates for the costs of this trial; and this is now assigned as error. The statute makes the surety in the attachment bond subject to all the liabilities of the principal in the bond. — Clay’s Dig. GO, §27. But the bond is required to be made payable to the defendant in the attachment and is intended solely for his indemnity. The condition of this bond concludes in the following language : “ Now if the said Gates shall prosecute his attachment to effect, and pay to said Gurley all such damages as he may sustain by the wrongful or vexatious suing out thereof, then the above obligation to be void; otherwise to remain in full force and effect.” The section, therefore, which subjects the surety to all the liability of his principal, must be so construed as to extend only to the liability for which the bond was required. It is of no importance to the •defendant in the attachment, whether Thompson ever gets his costs of the trial of the right of property. Let the judgment he affirmed.