Young v. Broadbent

l. attachdonmént of cause of action. I. The questions presented for our determination are those growing out of the instructions given and refused by the court, as they are contained in thé above statement of facts. The original . , 0 petition sets out as a cause of action, the indebtedness of defendant for the purchase-money of the lands under the contract which matured at a subsequent day, and avers sufficient cause for an attachment under section 3178 of the Revision.

The amended petition filed after the maturity of this indebtedness, as a cause of action, claims damages for the breach of the contract, and while plaintiff retains the land, the subject-matter of the contract, he asks that he may recover the loss which he sustained by its depreciation in value. Now here are two distinct causes of action, the first existed when the attachment was issued, the second did not exist and by no possibility could have existed until after the attachment wras issued, viz., March 1, 1866, when under the contract the purchase-money became due. Before that date the defendant could not have broken the contract as is charged in the amended petition. It appears from the record that the issues submitted to the jury, were those arising under the amended petition.

Plaintiff, of necessity, must have abandoned his cause of action set out in the original petition, for it is inconsistent with the one upon which he sought to recover. As a matter of fact he did abandon it.

*543II. By abandoning the cause of action set out in the original petition, the plaintiff is presumed to admit that it did not exist when the attachment was issued. He cannot be permitted to claim, while pressing a recovery on the cause of action of his amended petition, that the cause of action of the original petition also subsists, and to use the one cause of action for the purpose of obtaining an attachment, and the other for the purpose of recovering a judgment.

2.^ — inaebtexist. III. The existence of indebtedness is an essential prerequisite to the issuing of an attachment. It is in fact the foundation of the causes authorizing the writ. If issued when no indebtedness exists, it is wrongful. Porter et al. v. Wilson, 4 Greene, 314. If wrongfully issued, the plaintiff is liable for whatever damages the defendant sustained thereby.

"We conclude, therefore, that the instruction given by the court, is correct, and that the first instruction asked for by the plaintiff, not being applicable to the issues, was properly refused.

3. practice: demurrer. IY. Defendant’s cross demand is not founded upon the attachment bond, and it is claimed that his remedy is limited by the Bevision, section 3238, to an action on that instrument. This objection came too late, being raised for the first time by the instruction, after trial on the merits. Not having been before made, it will be deemed waived. Bev. § 2878. It is hot necessary, therefore, to inquire whether defendant had a remedy other than by action on the bond.

The second and fifth, instructions asked for by plaintiff were properly refused by the court.

Y. The substance of the fourth instruction of plaintiff was given by the court on its own motion; it was not necessary to repeat it, and there is no error in refusing such repetition. Affirmed. .