
    *Dunning vs. Humphrey & Clark.
    In an action on an attachment bond where the party suing out the attachment has failed to recover, the plaintiff is entitled to recover, not only the costs of the defence in the suit before the justice, but also damages for the Seizure and detention of the property.
    A plea of non damnificatus as to part, and tender of a sum certain as to the residue in bar of the action, connot be sustained
    Demurrer to plea. The plaintiff declared on an attachment bond executed by Humphrey and Clark, on the commencement of a suit in a justice’s court, by Humphrey against Dunning. The bond was conditioned among other things that if Humphrey should pay to Dunning, all the damages and costs which he might sustain, by reason of the issuing of the attachment, if Humphrey should fail to recover judgment in the suit, then, &c. The plaintiff averred that an attachment was issued, by virtue whereof his goods and chattels, to the value of $300, were attached and kept and detained for the space of sixty days; that subsequently the suit commenced by Humphrey was discontinued, and thus he failed to recover therein, the plaintiff then avers that he was subjected to great expense,in his defence of the suit, and that the defendants in this suit had not paid all the damages and costs, &c. The defendants pleaded non damnifioatus, except as to ten dollars, and as to that a tender before suit brought. To which plea the plaintiff demurred.
    
      M. T. Reynolds, for the plaintiff.
    
      S. Stevens, for the defendant.
   By the Court,

Nelson, Ch. J.

The plea is bad, as the action is brought for the recovery of unliquidated damages. Besides the costs of defending the attachment suit, the plaintiff here is entitled to such damages as a jury may think he has sustained by the wrongful seizing and detaining [ *32 ] of his property. If it was taken out of his pessession, he may *be entitled to the value of it; if seized and left in hia possession, to such damages as may be awarded for the unlawful intermeddling with the property.

Judgment for plaintiff.  