
    SPIVEY vs. McGEHEE et al.
    1. In debt on bond, executed in pursuance of an order of the Cbaueellor, as a condition precedent to the issuing of a me exeat, the condition of -which is, that the plaintiff in the writ shall prosecute his suit and writ to effect, or> failing therein, shall pay or cause to be paid to the defendant “ all such costs and damages as he may sustain from the wrongful suing out of said writ,” the plaintiff can only recover for the damages actually sustained by the wrongful suing out of the writ, and not such damages as he might recover in case if the writ had been sued out maliciouil/; the writ may have been sued out wrongfully, and yet without malice.
    2. But the plaintiff cannot recover upon proof merely that the me exeat was wrongfully sued out; he must also show, that the writ was not prosecuted to effect within the meaning of the bond.
    3. Error without injury will not reverse a judgment; but error raises the presumption of injury, and unless this presumption is repelled beyond doubt, the cause will he remanded for another trial.
    4. The Appellate Court will not look to grave and doubtful questions, which are not raised by the assignment of errors, and are not connected with the question in which the error is found, for the purpose of deciding that the error did not work injury.
    Error to the Circuit Court of Pickens.
    Tried before tbe Eton. E. PlCKENS.
    Tbe facts of tbis case all appear from tbe opinion.
    Rice & Morgan, and J. E. Belser, for plaintiff in error:
    1. In an action on tbe bond, for tbe wrongful suing out of tbe writ of ne exeat, tbe plaintiff is not bound to sbow malice, nor can tbe defendant rely, by way of defence, upon probable cause. Petit v. Mercer, 8 B. Monroe’s Rep., 51; Cox v. Taylor, 10 ib. 17.
    2. Tbe charge of tbe court below is clearly erroneous, in directing tbe jury to “find for tbe defendant, unless they believed, from tbe evidence, tbat tbe writ of ne exeat was sued out maliciously.” Sucb is not tbe law, when tbe suit is on tbe bond.
    8. Tbis case is much stronger in favor of tbe plaintiff, than tbe case of tbe mere wrongful suing out of an attachment. Tbe attachment deprives the party of bis property. Tbe ne exeat deprives him of bis liberty. Tbe law values the liberty of tbe citizen more highly than bis properly.
    N. W. Cocke, contra:
    
    I. There is no error in tbe charge of tbe court;
    1. Actions on bonds, to indemnify against tbe wrongful acts of tbe obligors, are governed by tbe same rules tbat apply to actions on tbe case for tbe injury sustained. Hill v. Rushing, 4 Ala. 212.
    2. In tbe absence of any statute, providing for tbe execution of a bond and prescribing tbe condition thereof, as is tbe case here, in an action on such bond it is necessary to aver and prove malice; otherwise, tbe action cannot be maintained. Browne on Actions at Law, 871; Yandúzor v. Lindeman, 10 Johns. 106; White v. Dingley, '4 Mass. 433; Lindsay v. Lamed, 17 ib. 190; Williams v. Hunter, 3 Hawks, 545; Kirksey v. Jones, 7 Ala. 622; Long y. Bogers, 19 ib. 321 ! Garrett et al. v. Logan, ib. 344. ‘
    II. But if there be error in tbe record, it is error without 'injury; for the plaintiff never can recover in this action.
    1. The prayer of the bill was for a writ of ne exeat, &c. “to seize and take into custody the body of Eli B. W. Spivey, until he deliver to the sheriff all of the said slaves in said mortgage mentioned,” &c.; “unless he, the said Spivey, shall execute to your orators a bond, in a sufficient penalty, with sufficient security, conditioned according to law.”
    2. The recital and condition of the bond are, that, “whereas, it is ordered,” &c., “that a writ of ne exeat do issue to restrain the said Spivey from removing beyond the jurisdiction of said court: Now, if the said complainants in said bill shall prosecute said bill and writ to effect,” &c.
    3. The fiat of the Chancellor directed the register, “upon the complainants, or either of them, entering into bond with three good and sufficient securities, in the sum of twelve thousand and two hundred dollars, and payable to said Eli B. W. Spivey, and conditioned according to law,” to issue the process, “ according to the prayer of the bill.”
    4. The writ issued by the register commands the sheriff to “ take the body of Eli B. W. Spivey, and him safely keep in custody, until he shall deliver up into your hands the aforesaid negroes,” &c., or until he enter into bail or security to the said complainants, in the sum of twelve thousand and two hundred dollars, with three or more good securities, conditioned according to law.”
    The latter portion, quoted from the prayer of the bill, was doubtless inserted by the pleader, under some obscure idea of the provisions of the statute, Clay’s Dig. § 63, p. 355, and was not intended, nor can it be construed to mean, a ne exeat, to restrain Spivey from removing his person beyond the jurisdiction of the court. Nor can the alternative of the writ issued be so construed, because such a construction would render it inconsistent with the fiat. But if such be the construction, it is void, not only because it is unauthorized by the fiat, but because it is a nullity -in itself. There is no law or statute, prescribing the condition or the penalty of the bond, to be given by the defendant, when arrested under a new exeat The statute (Clay’s Dig. § 24, p. 349) provides, that the Chancellor, by whom a ne exeat is granted, shall endorse thereon the sum and number of securities required from the defendant. /
    The writ issued, then, was simply a writ for the arrest and detention of Spivey, until he delivered up the negroes, or gave bond for their forthcoming. No other sensible construction can be placed upon the process. The bond is to indemnify against damage from the wrongful issuance of a ne exeat, restraining the removal of Spivey beyond the jurisdiction of the court; and the securities, at least, cannot be made liable for the issuance of a writ, or inj ury resulting from the execution of a writ, not embraced in the bond. Hurlestone on Bonds, 57 to 60, top page, (9 Yol. Law Library.)
   DARGAN, C. J.

— This was an action of debt, commenced on a bond executed by McG-ehee and others, in pursuance of an order of the Chancellor, granted upon the application of McGehee, as a condition precedent to the issuing of a writ of ne exeat against the plaintiff.

'The condition of the bond, after reciting the filing of the bill, the prayer for a ne exeat, and the fiat of the Chancellor, proceeds as follows: “Now, if the said complainants shall prosecute their said bill and writ to effect, or, failing therein, shall pay, or cause to be paid, to the said Spivey, all such cost and damages as he may sustain from the wrongful suing out of said writ, then the bond to be void,” &c. On the trial, as we are informed by the bill of exceptions, the plaintiff introduced proof tending to show, that he had' sustained actual damages, and that the writ was sued out maliciously ; but on this latter point the evidence was conflicting. The court charged the jury, that, unless they believed from the evidence that the writ was sued out maliciously, the plaintiff could not recover; but that they might infer malice from the want of probable cause.

If the action had been case, and not debt on the bond, no one would deny the legal accuracy of the charge. But the action is debt on a bond, the condition of which is, to pay all cost and damages that the plaintiff might sustain by wrongfully suing out the writ; and the question is, what will constitute a wrongful suing out of the writ in the legal sense of that term ? I was strongly inclined, at first, to think the charge was correct, and that the the term wrongful, in a legal sense, was synonymous with malicious. But subsequent reflection and investigation have satisfied me that it is not. The writ may have been wrongfully sued out, although it was done without malice. In the case of Petit v. Mercer, 8 B. Monroe, 51, the suit was debt on a bond, the condition of which was, to pay all costs and damages for the wrongful procuring an order upon which an attachment was issued. The defence relied on was, that the defendant had good reason to believe that the ground on which the order was obtained was true; or, in other words, that he had probable cause. The Court of Appeals of Kentucky held, that the condition was broken, if the ground on which the order was obtained did not in fact exist, although the defendant honestly believed, at the time of procuring the order, that it did. They also held, that the bond was intended as a security for the actual damages the part}'- might /sustain, but did not cover the damages which the obligee might have recovered for issuing the attachment maliciously. This authority is directly in point, and, we think, it asserts the law correctly.

In the case before us, the bond, though not required by statute, was given in pursuance of an order of the Chancellor, and we must construe it in the same manner as if it had been expressly required by the statute.

The proper inquiry is, whether the condition is broken. To hold that it is not, unless the writ was obtained maliciously as well as wrongfully, would be to limit the meaning of the term wrongful, and, thereby, to change the condition; for an act may be wrongful, though not malicious. Indeed, it may have been done honestly, yet wrongfully; and if we were to withhold the damages which resulted from the wrongful issuing of the writ, because it was not issued maliciously, we should disregard the contract, or rather, add a term to it.. It is the wrongful suing out the writ, that constitutes the breach of the condition, without regard to the question of malice; and the bond only covers such damages as the plaintiff in fact has sustained, and not such as might be allowed on account of tbe malice witb wbicb tbe writ was issued. If tbe plaintiff would recover damages as for a malicious prosecution, be must sue in case; for, on tbe bond, be can only recover tbe actual damages, and tbey result from tbe act’s being wrongful. Coxe v. Taylor, 10 B. Monroe, 17.

It is not to be inferred, tbat we intend to impugn tbe decisions of this court, in reference to attachment bonds, given in pursuance of our statute. Those bonds expressly stipulate for tbe payment of all such damages as tbe obligee may sustain “by tbe wrongful or vexatious suing out of the writ.” Tbe term “vexatious,” we have held to mean “malicious;” and, therefore, we have held, tbat tbe obligors stipulate, as well against tbe malice witb wbicb tbe writ was issued, as against tbe act’s being wrongful. Donnell v. Jones, 13 Ala. 490, and cases there cited. And bad tbe bond in this case contained tbe same terms, we should give it the same construction ; but as tbe term wrongful alone is used, malice is without tbe condition.

Neither is it to be understood from any thing we have said, tbat proof merely tbat tbe writ was wrongfully issued will, within itself, show a breach of tbe condition of this bond; for tbe condition is in tbe alternative, to prosecute tbe bill and writ to effect, or, failing therein, to pay all such costs and damages as tbe obligee might sustain from the wrongful suing of it out. Now, if tbe bill and writ bad been prosecuted to effect, tbe condition would have been performed, and no action of course could be sustained upon it. But if tbe bill and writ were not prosecuted to effect, within tbe meaning of the bond, then tbe obligors are bound for all the actual damages wbicb tbe plaintiff has sustained from tbe wrongful issuing of tbe writ, and be may recover them by showing tbat tbe writ was issued wrongfully.

"We think it unnecessary to examine tbe questions growing out of tbe admission of evidence, to wbicb tbe plaintiff objected; for, on another trial, tbe question of malice will be excluded, and tbe only legitimate evidence will be such as tends to prove or disprove tbe fact, whether tbe writ was wrongfully issued.

Let tbe judgment be reversed, and tbe cause remanded.

Note.- — -After the foregoing opinion bad been delivered, the counsel for the defendants in error presented a petition, asking the court to consider another question, which, if decided in his favor, would show that the error in the charge of the court below, was error without injury. Mr. Cocke’s argument upon this point is incorporated in his brief, which see.

DARGAN, C. J.

— The rule, we admit, is established, that an error without injury will not reverse a judgment; but error raises the presumption of injury, and this presumption must be repelled beyond doubt, or we must remand the cause for another trial.

It may be also understood as a rule from which we will not depart, that we will not look to grave and doubtful questions, not raised by the assignment of errors, nor connected with the question in which the error is frund, for the purpose of deciding that the error did not work injury. Such a practice would often take the plaintiff in error by surprise) and the judgment would be affirmed on questions not decided in the court below, nor argued in this court.

In the case of Armstrong v. Chastang, decided at the present term, the defendant in the court below insisted on an outstanding title to protect his possession. The court instructed the jury, that the defendant could not set it up, although such outstanding title might be perfect within itself. In this court, the defendant in error urged upon our consideration, that the outstanding title was not paramount to his, but in fact was inferior to it; but we said, that no decision was made in the court below upon the comparative merits of the two titles, and, therefore, we would not consider of them here.

So, in the case at bar, we find an error in the charge that malice was essential to the breach of the condition of the bond, and now, to avoid the consequences of this error, we are pressed to examine the writ of ne exeat itself, and to hold that it was void, and thus holding, to say that the error could not work injury.

¥e will not examine that question. It has not been decided in the court below, so far as we are informed by the record; at all events, it is not in tbe slightest degree connected with tbe assignment of errors; and, to say tbe least, it is a question not free from difficulty, even if it could be decided in favor of tbe defendant in error. But as to this, we will intimate no opinion.

It would introduce a dangerous practice, to refuse to reverse an erroneous judgment, on tbe ground that tbe error was productive of no injury, if we were compelled, in order to determine that no injury bad resulted from tbe error, to examine important and doubtful questions, not raised by tbe errors assigned, and probabl}' not made or decided in tbe court below. When we refuse to reverse, because tbe error was productive of no injury, tbe ground on which we stand ought not to be open to controversy.

Tbe application is refused.  