Metcalf v. Young , 43 Ala. 643 ( 1869 )

B. F. SAFFOLD, J.

The questions presented for decision in this case are : 1. Can the plaintiff in a suit on the attachment bond, recover actual damage sustained by him, after the commencement of his suit ? 2. Can he recover such actual damage not paid by him at the time of the final tral of his suit ? 3d. Is it reasonable and probable cause, to believe that the grounds upon which the attachment was sued out were true, a defense to an action for damages on the bond ?

The first exception taken by the defendant is directed against the admission of any evidence of damage incurred after the commencement of the suit, and will be disposed of in the consideration of the first question stated above.

The defendant, at any time within three years of the suing out of the attachment against him, before or after the suit is determined, may commence suit on the attachment bond, and may recover such damages as he has actually sustained, if the attachment was wrongfully sued out. If sued out maliciously as well as wrongfully, the jury may, in addition, give vindictive damages.—Revised Code, §§ 2992, 2993; McKellar v. Couch, 34 Ala. 336.

That the plaintiff may recover the actual damage sustained by him up to the time of the trial, is manifest.—Hair et al. v. Little et al., 28 Ala. 236; Jenkins v. McConnico, Adm’r, 26 Ala. 213; Seay v. Greenwood, 21 Ala. 491; Ewing v. Blount, 20 Ala. 694. The right to recover the actual damage incurred, and to commence the suit before the termination of the attachment suit, would, together, force the extension of time to that period.

Whether he has paid the damages sustained by him or not, is not material to the defendant. They may, or may not be such as can be compensated with money. It is sufficient for the defendant that he has imposed them.

The existence of reasonable and probable cause to believe the grounds upon which the attachment was sued out were true, is no defense to the action; though it may serve to mitigate vindictive damages.—Hudson v. Howlet, 32 Ala. 478; Donnell v. Jones et al., 13 Ala. 490; Alexander v. Hutchinson, 9 Ala. 825. As vindictive damages might have been recovered under the declaration, it would have been error to have excluded testimony tending to show that the defendant had probable cause to believe the plaintiff was intending to remove from the State.' The record shows that such testimony was offered and excluded, and that it was subsequently admitted.

The objection to the competency of the plaintiff as a witness is untenable. If a witness is competent when he is called, it is sufficient.—Talladega Ins. Co. v. Landers, January term, 1869.

Judgment affirmed.