
    Smith vs. Story.
    
      i An action on the case lies against the plaintifl'in an attachment bill for the wrongful suing out of such attachment, and the defendant in the attachment bill is not bound to sue in the first instance on the attachment bond.
    2. The mere failure to succeed in the prosecution of an attachment bill does not per sef put the plaintiff in the wrong, and subject him to a suit for damages for wrongfully suing out such attachment. For the grounds aud principles upon which damages maybe recovered, resort must be had to the common law action for malicious prosecutions.
    This is an action in the case instituted by Story against Smith, in the Circuit Court of Cocke county. The plaintiff in his declaration averred, that the defendant ■wrongfully and oppressively sued out an attachment in equity against the estate of the plaintiff, charging that he was a non-resident, and the said attachment was levied on the estate of plaintiff; the estate taken out of his possession, whereby he is damaged; that said attachment bill was dismissed in the Supreme Court at Knoxville for want of jurisdiction, because it appeared that plaintiff was a resident of the State of Tennessee, and that plaintiff was harassed and put to great expense, cost and troüble in defending the attachment so wrongfully sued out and prosecuted, &c.
    The defendant pleaded not guilty, andan issue joined thereupon was submitted to a jury, Anderson, Judge, presiding, at the March term, 1843.
    It appeared that Story was absent about two years from the State; that he had purchased lands in Georgia, and had avowed his intention to remove, but had not changed his domicil; that Smith had, by making oath that Story was indebted to him and a non-resident, obtained an attachment against his estate, which was levied on it and a slave taken out of his possession; that a bond with sureties was given to pay all costs in case.of failure, and all such damages as may be awarded against him for the wrongfully suing out said attachment, &c.; that this attachment bill was finally dismissed in the Supreme Court, on the ground of want of jurisdiction, the said Story being a resident of Tennessee.
    For the defendant in this case it was contended in argument, that the plaintiff’s action was misconceived, and that his remedy,.if any, was upon the bond taken upon the filing of said bill and the issuance of said attachment.
    It was further insisted for the defendant, that if the present action could be maintained, that then it was-incumbent'on the plaintiff to make out, as required in an action at common law for malicious prosecution, that the proceedings on said bill and attachment were false and unfounded; that they were instituted without reasonable or probable cause; that there was malice on the part of the complainant in instituting the same, and that the injuries, or wrongful acts on the part of defendant, alleged in plaintiff’s declaration,' were not of a character to entitle the plaintiff to recover any damages in this action. And that in other respects of the case the law was for the defendant; and his Honor was requested so to instruct the jury. But he refused to do so, and charged the jury, that it was indispensably incumbent on the plaintiff before entitling himself to any right of action on the attachment-bond above referred to, to bring first an' 'action on- the case for the wrongful, suing out of the attachment in order to ascertain his damages, and until this -was done he could maintain no action on said bond. And, therefore, this suit was well brought, and was the appropriate form of action in said case. His Honor further charged the jury, that the principles above contended for by defendant’s counsel in reference to the falsehood of the matter in the former suit, want of probable cause, malice and the nature of the damage or injury sustained', applied only to common law actions, but not to' this action; that this was a new action or remedy, prescribed by’our own attachment laws, to which these common law principles did not apply; that the legislature intended to make the simple fact of the wrongful suing out of the attachment, under any circumstances actionable. And if the defendant in said attachment, had .not in point of law and fact changed his domi-cil at the time of the issuance of said attachment, that then, in the opinion of the court, the attachment was wrongfully sued out; and the plaintiff would be entitled to recover such damages as, under all circumstances, the jury should deem proper, regardless of all other matters; and that upon all the facts, it was for the jury to determine whether or not the defendant had «hanged his domicil at the time of suing out said attachment.
    The jury rendered a verdict for twenty dollars for the plaintiff. The defendant moved the court for a new trial. This motion was overruled and judgment rendered, and defendant appealed.
    
      R. J. McKinney, for plaintiff in error.
    
      Peek, for defendant in error.
   Reese, J.

delivered the opinion of the court.

The plaintiff in error- some years since sued out an attachment bill against the defendant, in the Chancery Court at Dán-dridge, as anon-resident debtor; in .the trial of which it was determined by the Supreme Court, at this place, for the reasons stated in the report of the case, (1 Humphreys,) that the Court of Chancery had no jurisdiction, the residence and dom-icil of the defendant, upon the facts proved in the case, being held by the court to have continued in Tennessee, and not to have been tranferred to Georgia, as alledged in the attachment bill.

This action on the case was brought by Story against Smith, . to recover damages for the wrongful suing out of the attachment and costs of suit. Upon the trial of the cause in the Circuit Court, two questions were made by the counsel of defendant, Smith, upon which the charge of the court was requested.

' 1st. That the plaintiff’s action was misconceived* and’ that his remedy, if any, was upon the bond taken on the filing of the bill and the issuance of the attachment.

2d. If the action in the form brought could be maintained, that then it was incumbent on the plaintiff to make out, as required in an action at common law for malicious .prosecution, that the proceedings in said bill and attachment were false and unfounded; that they were instituted without reasonable or probable cause; that there was malice on the part of the complainant in instituting the same, and that the injuries and wrongful acts alleged in the declaration were not of a character to entitle the plaintiff to recover damages in this action.

Upon the first point, the court charged, that it was indispensably incumbent on the plaintiff, before entitling himself to any right of action on the attachment bond, first to bring an action on the case for the wrongful suing out of the attachment, in order to ascertain his damages; and on the second • point, the court charged, that falsehood in the matter of the former suit, want of probable cause, malice, and the nature of the damages or injury sustained, applied only to common law actions, but not to this action; that this was a mere action or remedy prescribed by our own attachment law, to which these common law principles did not apply; that the Legislature intended to make the simple fact of the wrongful suing" out of the attachment, under any circumstances, actionable, &c.

As to the first point we do not think there is any error in the opinion of the court, of which, at least, the plaintiff in error can complain. The proposition of the counsel, that in every case the action for the wrongful suing out of the attachment must be brought upon the bond, is certainly too broadly laid down. The bond is given to secure the payment of the costs and damages that may be recovered for wrongfully suing out the process; that recovery need not be in the first instance upon the bond. It would be inconvenient, to say the least, to sue the principal and surety upon the bond for the purpose of ascertaining the damages which he is entitled to recover, the non-payment of which would constitute the breach of the bond to be assigned in such actions. On the other hand, the bond is to secure costs as well as damages for wrongfully suing out the process. And we are not prepared to say, that an action could not be brought upon the bond to recover both.

The second point involves the enquiry, whether, if a party, his agent or attorney, under the influence of the strongest probable cause, and the most unquestionable bonajides, shall sue out an attachment, at law or equity, and shall be mistaken on the score, either of defendant’s indebtedness, or of his' conduct and situation entitling the plaintiff to the process, or if the magistrate or clerk shall omit to pursue the form of law, so that the process be quashed, such party shall, in any or in all these cases, be held liable to action, and be subject to damages.

The charge of the court in this case implies, that such would be the fact. In this we think the Circuit Court was mistaken. Much as the attachment laws have been abused in practice, and rigid as has always been the supervision of the courts over the conduct of plaintiffs seeking to enforce them, it has never hitherto been held, that mere want of success in maintaining the action or the process, shall per se, put the plaintiff in the wrong, and subject him for such wrong to the action of the defendant. The statute provides for no such thing; it specifies no ground of action; it merely requires bond to secure such damages as may be recovered. For the.grounds and principles upon which damages shall or may be recovered, the jury are‘to look to the common law. Is there an abuse of the process of the court? Is the claim of the plaintiff false? Was there no probable cause to resort to the use of the process? Was there mala fidesf Were fraud and oppression the object of the suit, or of resort to the process? Such are the facts, or some of them; such the motives which must be attached to the conduct of the plaintiff in the attachment suit. To hold, that any plaintiff at law or in equity, who sues by attachment and process, subjects himself, without more, to an action, would fill the courts with suits, or suppress the use of the process altogether. The principles of. the common law, therefore, on the subject of actions for malicious suits, must apply, modified by the nature of the case. Such is the opinion of the courts of North Carolina, and we are not aware of the fact, that it has been otherwise held any where. Let the judgment be reversed and a new trial be awarded.  