the separate property of each: Boyd v. Martin, 10 Ala. 700; Masterson v. Phinney, 56 Id. 336; and likewise in the case of a bond given to a partnership on attachment of partnership property: Hearth v. Lent, 1 Cal. 410; Alexander v. Jacoby, 23 Ohio St. 358. But it has been held that a separate right of action accrues to those of several defendants who alone were injured by the attachment, and that it is not necessary that the defendants against whom the attachment was rightfully obtained should be joined either as plaintiffs or defendants: Alexander v. Jacoby, supra. The sureties and principal obligor, whether the latter was the attachment plaintiff or not, may be joined as parties defendant in the action on the bond: Jennings v. Joiner, 1 Cold. 645. If the principal is sued alone, the sureties cannot be made liable upon the judgment, for they are not then parties to it: Bunt v. Rheum, 52 Iowa, 619. Where an administrator suing out an attachment executes the bond, describing himself therein as administrator, he may be made a party, and be liable personally on the bond, but he cannot be sued thereon in his representative capacity, nor can he subject the estate to an action for damages for his tortious conduct: Gilmer v. Wier, 8 Ala. 72.

Pleading. — It is a general rule that there should be sufficient in the declaration to show the execution of the bond; that the proceedings in attachment were oppressive and injurious to the plaintiff; the nature of the damages, and that they have not been paid: Wade on Attachment, sec. 299. In ex parte attachments, it is not sufficient to assign as a breach of the conditions of an attachment bond, that the defendant did not owe the debt for which the attachment was sued out; he must set out the proceedings under the attachment, and show that a judgment was given against him, and his property used to satisfy it; that he did not owe the debt; and that the attachment and judgment were illegal: Hoshaw v. Hoshaw, 8 Blackf. 258. It has been held that the declaration should show that the attachment was wrongfully and vexatiously sued out, and that thereby the obligee was damaged: Flanagan v. Gilchrist, 8 Ala. 621; even where the attachment has been quashed, and the property released, and these facts are alleged: Eaton v. Bartscherer, 5 Neb. 469. Where the declaration stated that the attachment had been wrongfully sued out by the obligors of the bond, instead of stating that it was so sued out by the plaintiff in the attachment suit, it was held defective: McCullough v. Walton, 11 Ala. 492. A declaration was held good on special demurrer, which alleged that the attachment was issued, tried, and adjudged to be void, without cause, tortious, and oppressive, and operated to put the defendant to great expense in defending himself: Morris v. Price, 2 Blackf. 457. In Sprague v. Parsons, 14 Abb. N. C. 320, it is said that if the attachment be void, malice or want of probable cause need not be averred. In Iowa, owing probably to the peculiar statute, it is necessary to allege that the plaintiff in attachment had no reasonable cause to believe the allegations in the affidavit, and it is not sufficient to allege that they were not true: Winchester v. Cox, 4 G. Greene, 121; Raver v. Webster, 66 Am. Dec. 96; Bunt v. Rheum, 52 Id. 619.

The defendant cannot deny the issuance of the attachment, when it is recited in the bond: Love v. Kidwell, 4 Blackf. 553.

The allegations concerning damages should show the real damage sustained and intended to be relied on. It is not necessary that the costs and expenses, i. e. the damages, shall be assessed prior to the action on the attachment bond, but the complaint must allege that costs and damages have accrued: Dickinson v. McGraw, 4 Rand. 158; Winsor v. Orcutt, 11 Paige, 578; and have not been paid; and a declaration which fails to aver the non-payment of the

damages sustained has been held bad on demurrer: Michael v. Thomas, 37 Ind. 501; Uhrig v. Sinex, 32 Id. 493; Ryder v. Thomas, 32 Iowa, 56; Horner ▼. Harrison, 37 Id. 378; Pinney v. Hershfield, 1 Mont. 367. Where the claim exceeds the amount of the penalty in the bond, it is held proper to assign the non-payment of the penalty; but if the damages do not equal the amount of the penalty, an averment that the damages have not been paid is the proper one: Hill v. Rushing, 4 Ala. 212.

Special damages should be alleged. Thus, under a general allegation of damage, it is held that the value of traveling expenses cannot be recovered: State v. Blackman, 51 Mo. 319. So under a claim for damages for injury by loss of hire and services of attached property, a verdict for its value will not be sustained: Cox v. Robinson, 2 Rob. (La.) 313. But an allegation tnat lefendant has been compelled to spend large sums defending the attachment suit was held to cover special damage, including attorney's fees and hotel expenses: Kelly v. Beauchamp, 59 Mo. 178. In Vorse v. Phillips, 37 Iowa, 428, it is held that attorney's fees cannot be recovered unless specially pleaded. In Texas damage by deterioration of goods while under attachment must be specially pleaded: Wallace v. Finberg, 46 Tex. 35. A declaration which fails to aver the non-payment of damages sustained is bad on demurrer: Michael ▼. Thomas, 27 Ind. 501; Ryder v. Thomas, 32 Iowa, 56; Pinney v. Hershfield, 1 Mont. 367; Hill v. Rushing, 4 Ala. 212.

In an action brought after dismissal of the attachment, and appeal taken from such dismissal, it was held that plaintiff might amend his petition to show the decision rendered on appeal subsequent to the institution of the action on the bond: McDaniel v. Gardner, 34 La. Ann. 341.

Evidence and Burden of Proof. — In actions on attachment bonds, the writ and return and the record and proceedings in the attachment suit are com petent evidence: Raver v. Webster, 66 Am. Dec. 96; White v. Wyley, 17 Ala. 167; Drummond v. Stewart, 8 Iowa, 341; Hibbs v. Blair, 14 Pa. St. 413. And in such actions admissions have been held competent evidence. Thus where the statutory ground of attachment was that the debtor had property which he refused to give in payment or security of the debt, the creditor's admission that the debtor had offered to secure the debt if proven against him was held conclusive against the creditor: Drummond v. Stewart, 8 Iowa, 341. So the admission of the defendant in attachment that he did the act for which the attachment was issued is admissible to prove that the attachment was not wrongfully sued out; and so would proof that the attachment suit was brought on the advice of counsel be evidence of want of malice: Raver v. Webster, 3 Id. 502. It has been held that the decision in the attachment suit concerning the truth of matters in the affidavit is conclusive evidence in an action on the bond: Hoge v. Norton, 22 Kan. 374; Hayden v. Sample, 10 Mo. 215; Dunning v. Humphrey, 24 Wend. 31. In Sackett v. McCord, 23 Ala. 851, it is held that the failure of the attaching plaintiff to sustain his action is undoubtedly prima facie evidence in support of the defendant's action on the bond; but is not conclusive proof that the attachment was either wrongfully obtained in the sense of being merely obtained without sufficient cause, or (as held in Raver v. Webster, 3 Iowa, 502) that the attachment plaintiff acted willfully wrong, that is, maliciously, in suing it out; nor (as held in Nockles v. Eggspieler, 47 Id. 400) is the fact that the attachment was voluntarily dismissed prima facie evidence that it was wrongfully sued out. But it is held that if no malice is involved, and the truth of the facts alleged as the ground of attachment were in issue, and the finding thereon is for the defendant and against the plaintiff, the judgment would conclusively estab

lish that the attachment was wrongfully obtained: Mitchell v. Mattingly, I Met. (Ky.) 237; Boatwright v. Stewart, 37 Ark. 614; and likewise as to a judgment and finding on an issue as to the existence of the debt which was the basis of the attachment: Lockhart v. Woods, 38 Ala. 631; Tucker v. Adams, 52 Id. 254; Gaddis v. Lord, 10 Iowa, 141. Where the attachment was dismissed on account of technicalities, the plaintiff in the attachment was not allowed to show his reasons for suing out the attachment: Hibbs v. Blair, 14 Pa. St. 413; but on the contrary, see Wood v. Barker, 76 Am. Dec. 346.

In the absence of proof of malice, no evidence concerning damages, other than of direct injury resulting from the attachment, should be received. And proof of the effect on defendant's credit is not admissible, as will be seen un. der the head of "Damages," below.

Burden of Proof. — In actions on attachment bonds, the defendant in the attachment becomes the plaintiff, and assumes the burden of proof: Burrows v. Lehndorff, 8 Iowa, 96; that is, the burden is on him to prove all the material facts in issue, and that the attachment was wrongful; not that he must positively and affirmatively prove the latter, but it may be shown by proof of such facts and circumstances as tend to establish the wrongful character of the act: Veiths v. Hagge, 8 Iowa, 163; Dent v. Smith, 53 Id. 262; Boatwright v. Stewart, 37 Ark. 614. And where probable cause is set up as a defense, the burden is still on him to prove its non-existence: Dent v. Smith, 53 Iowa, 262. And the burden is on the defendant in attachment, as to matters arising under a counterclaim for damages for wrongful attachment, which he interposes against the demand sued on in the attachment suit.

Damages. - Damages in suits on attachment bonds are measured by the terms of the instrument: Barnes v. Webster, 57 Am. Dec. 232; and the recovery cannot exceed the amount of the penalty: Hill v. Rushing, 4 Ala. 212; and therefore, if the penalty be in blank, no recovery can be had: Copeland v. Cunningham, 63 Ala. 394. The recovery is limited, as a rule, to the amount of actual damages: Reed v. Samuels, 73 Am. Dec. 253; Hays v. Anderson, 57 Ala. 374; Pounds v. Hamner, Id. 342; Moore v. Withenburg, 13 La. Ann. 342. But in order to recover, it is not necessary for plaintiff, in the action on the bond, to show that he has paid the actual damage he has sustained: Metcaly v. Young, 43 Ala. 643. The allowance for damages actually suffered should be liberal: Campbell v. Chamberlain, 10 Iowa, 337; Lawrence v. Hagerman, 56 Ill. 88; Offutt v. Edwards, 9 Rob. (La.) 90. Where the attachment is dismissed for mere irregularities, it is said that the sureties would not be liable for full damages: Garretson v. Zacharie, 8 Mart., N. S., 481.

As against the obligors in the bond, the defendant may recover for direct injuries only, such as loss from deprivation of enjoyment of his property, and the costs and expenses incurred in getting rid of the attachment: Pettit v. Mercer, 8 B. Mon. 51; Reidhar v. Berger, Id. 160; Alexander v. Jacoby, 23 Ohio St. 358; Smith v. Eakin, 2 Sneed, 456. It has been held that the surety is liable to the defendant in attachment for all damages up to the time of redelivery of the attached property where the attachment is dismissed as wrongful: McReady v. Rogers, 1 Neb. 124. The matter of probable cause or good faith in issuing attachment is not involved in the liability of the attachment plaintiff except in mitigation of damages, and will not affect the defendant's right to recover against him the actual damage he has sustained: Alexander v. Hutchinson, 9 Ala. 825; Donnell v. Jones, 48 Am. Dec. 59; Durr v. Jackson, 59 Ala. 203; Pollock v. Gantt, 69 Id. 373; Churchill v. Abraham, 22 Ill. 455. In Sharpe v. Hunter, 16 Ala. 765, it was held that where the attachment suit abated because of a defective affidavit, and the grounds for

the attachment were just, actual damages could not be recovered in an action on the bond. It is difficult to determine what is actual and what is specula. tive damage. Actual damage includes expenses and losses incurred in mak. ing defense to the attachment proceedings, and also loss occasioned by the deprivation of use of the property pending the attachment; or by illega sale of it, or injury to or loss or destruction of it: Cox v. Robinson, 2 Rob. (La.) 313; Pettit v. Mercer, 8 B. Mon. 51; Kelly v. Beauchamp, 59 Mo. 178. Within this definition may be considered, as already stated, costs and expenses incurred in procuring the discharge of the attachment, costs and expenses of obtaining testimony on the trial after traverse of the affidavit: Hayden v. Sample, 10 Mo. 215; defendant's costs of suit generally: Dunning v. Humphrey, 24 Wend. 31; Trapnall v. McAfee, 3 Met. (Ky.) 34; Winsor v. Orcutt, 11 Paige, 578; as well on appeal as otherwise: Bennett v. Brown, 31 Barb. 158; S. C., 20 N. Y. 99. A condition in the bond to pay all costs that might accrue has been held to cover costs on the trial of the plea in abate. ment to the affidavit: Hayden v. Sample, 10 Mo. 215.

As to counsel fees generally, it is held that the defendant will be allowed to recover amounts paid to counsel for services in defending the attachment suit: Trapnall v. McAfee, 77 Am. Dec. 152; Offutt v. Edwards, 9 Rob. (La.) 90; Seay v. Greenwood, 21 Ala. 491; Burton v. Smith, 49 Id. 293; Higgins v. Mansfield, 62 Id. 267; Dothard v. Sheid, 69 Id. 135; Morris v. Price, 2 Blackf. 457; Vorse v. Phillips, 37 Iowa, 428; Porter v. Knight, 63 Id. 365; Phelps v. Coggeshall, 13 La. Ann. 440; Accessory Transit Co. v. McCerren, Id. 214; Swift v. Plessner, 39 Mich. 178; Raymond v. Green, 12 Neb. 215; Northrup v. Garrett, 24 N. Y. Sup. Ct. 497; but see, on the contrary, Heath v. Lent, 1 Cal. 410; Hughes v. Brooks, 36 Tex. 379; but such fees only are recoverable, and not fees for defending the whole case: Porter v. Knight, 63 Iowa, 365. Counsel fees paid by defendant to attorneys employed to defend the garnishee from liability are not allowed: Pounds v. Hamner, 57 Ala. 342; Hays v. Anderson, Id. 374; Flournoy v. Lyon, 70 Id. 308; nor can recovery be had of fees paid to counsel for services in the action on the bond: Hays v. Anderson, 57 Id. 374; Plumb v. Woodmansee, 34 Iowa, 116; Vorse v. Phillips, 37 Id. 428; Offutt v. Edwards, 9 Rob. (La.) 90. See Shultz v. Morrison, 3 Met. (Ky.) 98, and Trapnall v. McAfee, Id. 34, where it is held that only such fees as are proved to be reasonable can be recovered. In Tyler v. Safford, 3 Pac. Rep. 333 (Kan.), plaintiff in a suit for damages for wrongful attachment employed an attorney from another county, who usually attended to his business, and he claimed traveling expenses of such attorney as part of his damages. The court left the question, as to whether such expenses were reasonable and proper, to the jury. In Texas, the court refused to allow for the defendant's time spent and expenses incurred in defense of the suit: Harris v. Finberg, 46 Tex. 79; Craddock v. Goodwin, 54 Id. 578; and in Missouri traveling expenses are held not to be part of the necessary disbursements occasioned by the attachment: State v. Blackman, 51 Mo. 319.

In the class of damages which are recoverable is embraced depreciation in value of the property by reason of the seizure: Kisler v. Carr, 34 Cal. 641; Lowenstein v. Monroe, 55 Iowa, 82; Mitchell v. Harcourt, 62 Id. 349; and this cannot be established (so it has been held) by the opinion of witnesses: Pol lock v. Gantt, 69 Ala. 373; S. C., 44 Am. Rep. 519; Alexander v. Jacoby, 23 Ohio St. 358. Where the property seized is personalty, depreciation in price while held under attachment is recoverable: Frankel v. Stern, 41 Cal. 168; and 30 damages are recoverable for injury to material procured for the purpose of performing some contract, which performance, by reason of the at

tachment, is hindered, and the property allowed to go to waste, or thereby depreciated in value: Carpenter v. Stevenson, 6 Bush, 259. The extent to which the property depreciates is held to be the measure of damage to the owner whether the price be affected by actual injury to the goods, or by the changing of the market price: Fleming v. Bailey, 44 Miss. 132; and the same rule has been held applicable to bonds and bank notes seized on attachment: Horn v. Bayard, 11 Rob. (La.) 259. In Hoag v. Norton, 21 Kan. 374, it was held that recovery might be had for loss to the owner of growing cattle, by their failure to increase in weight, which they would have done had they been left in the owner's possession. It has been held that the cost of replacing property would be the measure of recovery: Selze v. Belden, 48 Iowa, 451; but this is evidently not the rule applicable to all cases, as is evident from the instances above. Rent of a building in which goods were stored, pending detention on attachment, is recoverable as part of the damages for wrongful attachment: Lowenstein v. Monroe, 55 Id. 82; Mitchell v. Harcourt, 62 Id. 349. Where the property is of such a nature that from the loss of its use damage will result, the value of such use is held to be recoverable, and is the measure of damages in such cases: Reidhar v. Berger, 8 B. Mon. 160; Carpenter v. Stevenson, 6 Bush, 259.

Remote or speculative damages resulting from injuries to credit, business, character, or feelings, cannot be recovered: Reidhar v. Berger, 8 B. Mon. 160; Donnell v. Jones, 48 Am. Dec. 59; Floyd v. Hamilton, 33 Ala. 235; Higgins v. Mansfield, 62 Id. 267; Pollock v. Gantt, 69 Id. 373; Holliday v. Cohen, 34 Ark. 707; Oberne v. Gaylord, 13 Bradw. 30; Campbell v. Chamberlain, 10 Iowa, 337; State v. Thomas, 19 Mo. 613; as for injury to his credit, etc., the defendant must in general obtain relief through an action on the case. In Swift v. Plessner, 39 Mich. 178, however, where the defendant's business was injured by the attachment, all the facts were allowed to go to the jury, and damages were allowed; and likewise in Ohio, it being there held, however, that only damages for necessary loss of business should be allowed, and not for possible injury to the reputation of goods: Alexander v. Jacoby, 23 Ohio St. 358. In Brandon v. Allen, 28 La. Ann. 60, and Heath v. Lent, 1 Cal. 410, it was held that the attachment of realty would not operate to depreciate its value, and hence no recovery could be had therefor.

Because one attachment usually results in subsequent attachments by all of the defendant's creditors, it does not follow, if the first attachment is defeated, that the plaintiff in the first suit is responsible for all damage from the other attachments because of such, his first attack. But each creditor is responsible alone for the injury occasioned by himself: Marqueze v. Southeimer, 59 Miss. 430.

Exemplary Damages. — As a rule, in actions on attachment bonds, exemplary damages cannot be recovered. But in Johnson v. Farmers' Bank, 4 Bush, 283, it is held that even in actions on attachment bonds against the principal obligor and the sureties, a distinction is to be made between cases where the attachment was simply wrongful, because it was unlawful, or the affiant was mistaken as to the facts, and where it was willfully wrong, vexatious, or unsupported by probable cause; and that in cases falling under the former class, the recovery is limited to such expenses as are caused in defending against the attachment; while in the latter, the party suing on the bond may recover damages commensurate with the injury sustained. And courts go still further, and say that where the attachment is clearly vexatiously sued out, the obligor and sureties may be liable for vindictive damages: Reed v. Samuels, 73 Am. Dec. 253; Floyd v. Hamilton, 33 Ala. 235; Metcalf v. Young,