
    Baxley v. Segrest.
    
      Action on Attachment Bond, for Damages.
    
    1. Defenses for suing out attachment. — In an action on an attachment bond, to recover damages for the wrongful and vexatious suing out of the writ, the defendant is not limited to proof of the existence of the particular ground stated in the affidavit, but may show any other ground which authorized an attachment; and if the writ was sued out by a landlord, to enforce his statutory lien on the crop, he may prove the existence of any ground which would have authorized an attachment against the crop; but, when the attachment was sued out against the defendant’s estate generally, on the ground that he had fraudulently-disposed of some of his property, it can not be shown, in defense of an action on the bond, that he had removed a portion of his crop, without paying the rent, and without the consent of the plaintiff, his landlord, although these facts might have authorized a special attachment against the crop.
    2. Affidavit for attachment by landlord, on account of removal of crop. An affidavit for an attachment at the suit of the landlord, which states that the tenant has “moved a part of the crop grown on the rented premises, without paying the landlord Ms said advances, and without the consent of his said landlord” (Code, § 3061), is substantially defective.
    Appeal from the Circuit Court of Macon.
    Tried before the Hon. James W. Lapsley.
    Tbis action was brought by G. W. Segrest, against J. H. Baxley and others, to recover damages for the wrongful and vexatious suing out of an attachment against said Segrest, at the suit of said Baxley, the other defendants being sureties on the attachment bond. The attachment bond, on which the suit was founded, was dated the 14th December, 1887, and was conditioned in the words of the statute. The attachment was sued out on the ground, as expressed in the affidavit, “that the said G. W. Segrest has fraudulently disposed of some of his property, and [is] withholding the remainder, so that the plaintiff will probably lose his debt without the said attachment.” On the trial, as the bill of exceptions states, “the proof tended to show that the plaintiff was the tenant of said Baxley during the year 1887, having rented land from him in Tallapoosa county; that Baxley, as landlord, advanced to Segrest two mules, a wagon, two cows, and supplies for the sustenance and well-being of him and his family, and for preparing the ground for cultivation, amounting to $362.95; that said Segrest bad moved a part of the crop grown on the rented land, without paying the landlord for said advances, and without the consent of the landlord; that said Segrest thereupon sued out, on the 14th December, 1887, before a justice of the peace, the attachment which is the foundation of this suit; and that the property on which the attachment was levied, was the same as that so advanced by the landlord, and the crops grown on the rented premises.” The court charged the jury, in substance, that these facts did not justify the suing out of the attachment, nor constitute a defense to this action. The defendants excepted to this charge, and here assign it as error.
    W. F. Foster, and W. D. Bulger, for appellants,
    cited Kirhsey v. Jones, 7 Ala. 622; Sharpe v. Hunter, 16 Ala. 765; Lockhart v. Woods, 38 Ala. 631.
    Abercrombie & Bilbro, contra.
    
   CLOPTON, J.

The appellant sued out an attachment against the estate of appellee, under sections 2929-2930 of the Code, 1886. The ground upon which the attachment was issued is, as set forth in the preliminary affidavit, that appellee “has fraudulently disposed of some of his property.” It is an ordinary original attachment, sued out for the collection of a debt, without reference to any relation between the parties, other than creditor and debtor, and creating a lien on the property seized; which we shall term a general attachment, for the purpose of distinguishing it from attachments authorized for the enforcement of existing specific liens, which, as has been said, may be regarded as exceptional. Appellee seeks by the action, the foundation of which is the attachment bond, to recover damages for the wrongful and vexatious suing out of the process. The defendants introduced as a defense evidence conducing, to show that the relation of landlord and tenant existed between the plaintiff and defendant in the attachment suit; that the latter was indebted to the former for advances, and had removed a part of the crop grown on the rented premises, without paying plaintiff for the advances, and without his consent. Appellant’s contestation is, that the existence of one of the statutory grounds, upon which a landlord may sue out an attachment for rent and advances, is a full defense to an action on a bond given by tbe landlord to procure tbe issue of a general attachment, though neither of the causes which authorized the issue of such attachment may exist.

The general rule is unquestionable, > that in an action on an attachment bond, the defense is not limited to proof of the particular ground stated in the affidavit, and that proof of any one of the several grounds prescribed by the statute, upon which the particular writ may be sued out, is a complete defense. The rule is rested on the principle, that as the grievance complained of is the wrongful or vexatious suing out of the attachment, no legal damage can be sustained, if any one of the causes existed, which warranted a resort to such process. — Lockhart v. Woods, 38 Ala. 631; Kirksey v. Jones, 7 Ala. 622. But the general rule has also been qualified and limited. In Reynolds v. Culbreath, 14 Ala. 581, which was an action on a bond executed upon suing out an original attachment, the defendants offered evidence tending to show that the plaintiff in the suit, at the time the attachment was sued out, was about to dispose of his property fraudulently, with intent to avoid payment of the debt. By the statute then in force, the ground thus sought to be proved was one of the causes prescribed for which an ancillary, but not an original attachment, might issue. The Circuit Court ruled, that such cause, if shown or proved, was not a defense to the action, but only went in mitigation of damages. After considering the general rule, it is said: “Conceding that the defendant was about to dispose of his property to avoid the payment of the plaintiff’s debt, and still the existence of such a state of things did not warrant an original attachment to' issue, commanding its seizure. This being the case, the evidence adduced by the defendant, if available for any purpose, could not exert greater potency than was accorded to it by the Circuit Court.” The principle is, that though the statute may authorize the issue of attachments of different kinds, and for distinct purposes, in different classes of cases, when resort is had to the process in one class, it is wrongfully sued out, if neither of the grounds prescribed by the statute on which the process may issue in the particular class, exists, though a statutory cause for issuing the writ in some other class may be shown. The form, purposes and effect of'an ordinary general attachment, and of an exceptional attachment, are entirely distinct; the former creates, the latter enforces a lien; the former commands the seizure of the estate generally, the latter of the particular property on which the lien exists. It is manifest that there may be legal damage resulting from the issue of an attachment commanding the seizure of property generally, and creating a lien thereon, which could not result from the seizure of particular property, on which a lien has been previously created. In such case, the reason of the general rule ceases. Had the defendant proved the existence of any one of the grounds which warrant a resort to the process for the enforcement of a landlord’s lien, it would not have been a defense to the action.

But the evidence adduced by the defendants did not tend to show the existence of either one of these causes. The evidence introduced for this purpose, as recited in the bill of exceptions, is, that the defendant in attachment “had moved a part of the crop grown on the rented premises, without paying the landlord said advances, and without the consent of his said landlord.” The ground prescribed by the statute is, that “the tenant has removed from the premises, or otherwise disposed of any part of the crop, without paying such rent and advances, or either, and without the consent of the landlord.” — Code, 1886, § 3061. An affidavit, setting forth the grounds in the words of the bill of exceptions, would fail to conform to the statutory requirement, and would be defective. — Knowles v. Steed, 79 Ala. 427.

Affirmed.  