#### JONES *vs.*LAWRENCE.

[action on attachment bond.J

' 1. *When action lies on attachment bond, for wrongful suing out, of attachment.*— The fact that a non-rosident debtor, against whom an attachment is here sued out by a non-resident creditor, did not havo sufficient property in the State of his residence to pay all the debts then.and there owing by him, although sufficient to pay the debt of such attaching- creditor, (Code, (j-2509,) is no defense to an action on the attachment bond, to recover damages for the wrongful suing ont of the writ.

Appeal from the Circuit Court of Montgomery.

Tried before the Hon. John Gill Shorter.-

This action was brought by Erancis M. Lawrence, against Seaborn,- Jones and others;- and was founded on an attachment bond, dated the 16th March, 1854, the condition of which was as follows: “The condition of the above obligation is such, that whereas the said'Seaborn Jones Ras, on the day of the date hereof, prayed an attachment at the suit of himself, by his agent, John A. Jones, against the estate of the said Lawrepoe, for the sum of $4,827 64, and has obtained the same,, returnable,to the next term of the circuit court of Montgomery county,— now, "if said plaintiff shall prosecute said attachment to effect, and pay the defendant all such costs and damages as he may sustain by reason of the wrongful or vexatious suing out of such attachment, then this obligation to be void,” &c. ■ The complaint alleged, that the condition of said bond “has been-broken by the defendants, in this— that the said Seaborn Jones has failed to pay plaintiff all such costs and damages as he has sustained by reason of the wrongful and vexatious suing out of said attachment; and plaintiff avers, that said attachment was wrongfully and vexatiousjy sued out, to his damages as above stated ; and that there was, at the time of the suing out of the same, or before or since, no legal cause or ground for, *619suing out said attachment; and that the said Seaborn Jones and himself, at the time of the suing out of said attachment, were both non-residents of the State of Alabama; and that he (the plaintiff) had sufficient property in Georgia, (which then, was, and now ■ is, the State of his residence,) wherefrom to satisfy the debt for which said-attachment was sued out against him; and that the said defendants knew that he had sufficient property in said State of Georgia, wherefrom to satisfy said debt; and plaintiff denies that he had not sufficient property in the State of his residence, wherefrom to satisfy said debt for which said attachment w7as sued out.”

“On the trial,” as the bill of exceptions states, “the plaiutiff introduced evidence tending to show his right to recover damages; and the defendants introduced evidence tending,to show, that the plaintiff’s property in Georgia, the State of his residence, at the time the attachment against him was sued out, although sufficient to pay the particular debt on which said attachment was sued out, was not sufficient to pay all the debts then owing-by him in that State. On this evidence, the defendants asked the court to instruct the jury,, that if the plaintiff’s property in the State of his residence was not, at the time said attachment was sued out, sufficient to pay all the debts then and there due and owing by him, although sufficient to pay the particular debt on which-the attachment issued, then the plaintiff" could not recover; which charge the court refused, an.d the defendants excepted.”

The refusal of the charge asked is assigned as error.

Watts, Judge & Jackson,' for appellants.

Golbthwaite, Rice & Semple, *contra.*

R. W. WALKER, J.

This is a suit upon an attachment bond, given in a case in which a non-resident creditor sued out an attachment against a non-resident debtor. The Code requires that, in such a case, the plaintiff" must, “in addition to the oath necessary in other cases, swear that, according to the best of his knowledge, information and belief, the defendant has not sufficient property within *620the Staté of his residence, wherefrom to satisfy the debt.” Code, § 2509. The simple question presented for decision is, whether, when the plaintiff in the attachment is sued oh his bond, for wrongfully suing out the attachment, he makes a full defense to the action, by proving that,-although the debtor had sufficient property in the State of his residence to satisfy the particular debt on which the attachment issued ; yet he did not have property in such State sufficient to pay all the debts then owing by him,, and due therein. This question must be answered in the negative. The plaintiff is to swear that, according to the best of his knowledge, &c., the defendant has not sufficient property within the State of his residence “to satisfy *the debt” .*What debt? Obviously the debt to recover which the attachment is sued out.' The legislature has required the non-resident creditor, when he proceeds against another non-resident, to swear to a state of facts which, if true, would clearly show that tlie creditor could not, if he made the attempt, collect his debt in the State of the debtor’s residence. The uselessness of legal proceedings there, justifies the 1680x1 to the process of attachment here. Butit does not follow, that the creditor would he unable to collect his debt in the State of the debtor’s residence, simply because the property of the debtor was insufficient to satisfy all of his liabilities. It is not unusual for diligent creditors to collect the whole of their demands against-persons whose assets do not'equal their debts. • • ■

A resident creditor can not sue out an attachment against a resident debtor, simply because the latter is insolvent; and no good reason can be assigned, why one non-resident should be allowed to attach the property of another, on grounds which would not justify such a proceeding on the part of one resident of the State against another. If any difference should be made, it should be rather in favor of the resident, than of the non-resident creditoi’. The remedy by attachment is a harsh one, at best; and this is especially the case, where both parties are non-residents. We feel no disposition to extend the right to the use of this process by one non-resident against *621another, to cases not falling within the language employed by the legislature.

Whether the existence of reasonable ground to believe that the debtor had not sufficient property in the State of his residence to satisfy the debt of the attaching creditor, would be a defense to an action on the bond, is a question not presented by this record. — See Pettit v. Mercer, 8 B. Monroe, 51-2.

Judgment affirmed.