Floyd v. Hamilton

WALKER,’J.

The circuit court erred, in admitting evidence of the instructions of the attorney of the plaintiff in attachment, to the deputy sheriff, “ that he might leave the property levied on as he found it until the sheriff came, but to stay there and watch the property.” These instructions were but the declarations of a third person, and inadmissible to establish any fact in the case. They may have conduced to show the absence of malice in the attorney, who represented the plaintiff in attachment, in the procurement of thejarocess; but the plaintiff in attachment was not responsible for the malice of his attorney, and cannot be relieved • by the want of malice in his attorney.—Kirksey v. Jones, 7 Ala. 622 -629.

[2.] There were, also, errors committed in the admission of evidence, that the plaintiff in this suit (the defendant in attachment) was embarrassed in his pecuniary matters, and that he was pressed for money. Neither indebtedness, pecuniary embarrassment, nor insolvency is a ground for the obtainment of an attachment. Nor can either justify a wrongful suing out of an attachment, or mitigate the offense of malice in obtaining it. If there were any circumstances, which could make such facts relevant, it was incumbent on the party offering the evidence to show that such connection would be made. If the party designed to raise any question of fraud in a conveyance made or about to be made, which would be affected by the testimony, he should have shown to the court, or offered to show, that the defendant in attachment had disposed, or was about to dispose of his property, so that it might appear that there was a question in the case to which the testimony was relevant.

[3.] There was no error in the rejection of the evidence, offered by the plaintiff, of the reply which his brother returned, when inquiry was made for the plaintiff. The plaintiff himself had called for the question propounded to his brother, and could not make his own act in calling for the question a legal ground upon which to ask for the reply, which was mere hearsay evidence, being the unsworn declaration of a third person.

[4.] There was no error in the giving or refusing of *237 •charges. If the attachment was only wrongfully sued out, the plaintiff was entitled to recover the actual damage. If the attachment was vexatiously as well as wrongfully sued out, the plaintiff might also recover vindictive damages.—McCullough v. Walton, 11 Ala. 492 ; Kirksey v. Jones, 7 Ala. 622 ; Shepherd’s Digest, 521. The injury to the wounded feelings of the plaintiff was not a part of the actual damage, and could only be regarded by the jury in estimating the damages in the event they found the attachment to have beeu vexatiously sued out.-—Donnell v. Jones, 13 Ala. 490 -509.

The judgment of the court below is reversed, and the ■cause remanded.