
    WOOD vs. BARKER.
    [ACTION ON ATTACHMENT BOND, FOR DAMAGES.]'
    1. Malice, and vindictive damages. — In an action on an- attachment hond, if the attachment was not vexatious as against the defendant in the process, the fact that the attaching creditor was actuated by malice towards a third person, who, though a joint obligor with the defendant-in attachment, was not a x>arty to the process, affords no ground fertile recovery of vindictive damages.
    2. Admissibility of declarations, as part of res gesice. — The declarations of the plaintiff in attachment, to his attorney, as to his reasons for suing-•out the process,, made at the time of suing out the writ, are admissible evidence, in an action on the attachment bond, as a part of the res festas.
    
    S. General objection to evidence. — A general objection to, evidence, a part of which is adm-issiblo, may he overruled entirely.
    
      Appeal from the Circuit Court of Dallas.
    Tried before the Hon. Nat. Cook.
    This action was brought by William Wood, against Stephen B. Barker and others, the sureties of said Barker; and was founded on‘an attachment bond, executed by the defendants, in a suit previously brought by said Barker against the plaintiff in this suit. The attachment bond was conditioned as the statute prescribes. The breaches alleged in the complaint were — 1st, that the attachment was not prosecuted to effect, but was dismissed by the plaintiff therein ; 2d, that said attachment was wrongfully sued out; and, 3d, that said attachment was vexatiously sued out. Issue was joined, as the bill of exceptions states, “on each breach of the plaintiff’s complaint.” On the trial, after the plaintiff had proved the issue of the attach-' ment, its levy by service of garnishment, and the dismissal of the attachment suit, in vacation, before the commencement of this suit, — “ he offered one Gibson as a witness, who was a joint obligor with him on the note which was the foundation of the attachment-suit, and offered to prove by him, that said Barker told him (witness), after said attachment was sued out, that he sued out said attachment to vex and harass him (witness), and to injure him in his standing in the community, because he had refused to go security for said Barker on a replevy bond. The court refused to allow the witness to prove said Barker’s declarations to him, and the plaintiff excepted.” The defendant introduced as a witness one of his attorneys in the attachment suit, “by whom he proposed to prove his reasons for suing out said attachment, as stated at the time to said attorney, and the reason why 'the attachment suit was dismissed. The plaintiff objected to this evidence, but the court overruled the objection. The witness testified, that the defendant’s reason for suing out said attachment, as stated to him at the time, was, that the plaintiff had deceived him as to his ability to pay, and he was afraid that Gibson alone was not able to pay the debt; and that' the attachment suit was dismissed, by his advice, because the affidavit on.which itf-was founded was defective.” The plaintiff objected to. this evidence, and reserved an exception to the overruling of his objection. Tiie several rulings, of the court on the evidence, to which exceptions were reserved, are now assigned as error.
    Geo. W. Gayle,, for appellant.
    Tiios. H. Lewis, contra.
    
   R. W. WALKER,. J.

If the attachment was not vexatious as against the defendant himself, the fact that the attaching creditor was actuated by malice against some third person, not aparty to the process, affords no ground for the recovery of vindictive damages in this suit.

A part of the testimony of the witness Williams consisted of "the declarations which the defendant made at the time the attachment was issued', -as to his reasons for having it issued. These declarations were admissible as part of the res gestee.—Pitts v. Burroughs, 6 Ala. 735-6, and cases cited; Dearing v. Moore, 26 Ala. 590; Sanford v. Howard, 29 Ala. 695. The exception tak'en was to the admission of the whole of the witness’ evidence; and, as part of it was admissible, this court will not reverse, even if other portions of it were illegal. On that point, however, it is not necessary for us to express an opinion.

Judgment affirmed.  