
    Webster et al. v. Raver.
    la an action upon an attachment bond, it is error in the court to reiuee instructions asked in reference to damages, when such instructions were in strict accordance with the Code.
    Where a correct instruction is asked and refused, it is calculated to mislead the jury, although the substance of the instruction is given in a different form.
    
      Appeal from Jones' 'District Court.
    
   Opinion by

Hall, J.

Hamilton Haver, the appellee, brought his suit in the district court of Scott county upon an attachment bond, executed by the appellants, William Webster and others, to appellee, on the 2d day of March, 1854, in the penal sum of four hundred dollars. Venue changed to Jones county. Judgment for plaintiff.

Upon the trial, the defendant below asked the court to instruct the jury “ That if said attachment was only wrongfully sued out, the plaintiff can only recover such damages as he may have proved to the jury he has sustained, and not exemplary damages.” This instruction was refused hy the court, aud exceptions were taken by defendant. The court afte'' this refusal, instructed the jury: “That hey were the judges alone of the amount of damages and. that exemplary damages were to be given only as they were satisfied that the attachment was willfully sued out.”

The refusal of the cojirt below to give the instruction prayed for by the defendant,is clearly error. The Code, § 1854, provides: That “in aciions, on attachment bond, the .plaintiff therein may recover, if he shows that the attachment' was wrongfully sued out, and if willfully wrong, he mav recover, exemplary damages.5'

• The giving of the instruction in a different form will not aid the defendant, 11 Ala., 535; 16 Ala. 720. It is error fora court to refuse a proper instruction, even though the same may he given in a different form.

The tendency of refusing correct and relevant instructions cannot he otherwise than to confuse and mislead a jury, and bring just contempt upon the adniinisi'^ffon. of justice in our courts.

The instruction prayed for hy the defendant below, strictly, accords with the Code. The one given by the court, rather fritters away the point, and only saves itself from absolute error by a proviso at the conclusion. Taking the refusal to give one instruction, and the giving of the other instructions together, the action of the court qeqiralizes itself, and renders the question doubtful, which if left without any instruction, would have been more readily solved.

Poor and Henry, for appellants.

1. M. Preston, for appellee.

Judgment reversed.  