Appeal from the Circuit court of Etowah.

Tried before the Hon. W. L. Whitlock.

This suit was begun by James Hall, at the fall term, 1876, of the Circuit Court of Etowah county, to recover damages for the breach of an attachment bond made by Mary Grady, Elizabeth Grady, J. C. Abney and A. J. Blair. The defendants then pleaded, “ in short, by consent, first, nonassumpsit; second, covenants performed; third, that the said attachment was not sued out wrongfully, or vexatiously, or maliciously, or without probable cause.”

On the trial, the defendants offered in evidence the following instrument:

“The State of Alabama, Etowah county. Know all men by these presents, that having this day received from Mary A; Grady eighty-five dollars advanced in money, or its equivalent in a good young mare, and having given my note bearing even date with this instrument, and due on the 25th of December, 1875, for said sum of money, I, James Hall, do hereby declare that such advance was obtained by me bona fide, for the purpose of making a crop the ensuing year, on William Grady’s plantation, in Etowah county, and that without the same it would not be in my power to procure the necessary team, provisions and farming implements to make a crop; and in consideration of said advance and to secure the same, I hereby grant, bargain, sell and convey to the said M. A. Grady the entire crop of cotton and corn, and everything else which may be produced by me on the said W. Grady’s plantation the ensuing year, and also the following property, viz.: the saicj mare above- mentioned. But this conveyance is on the following condition: If I fail to pay the. said note on or before the said 25th day of December, 1875, when the same falls due, then the said Mary A. Grady is authorized to take possession of said property above conveyed, or any of it, and is also authorized, after giving thirty days notice of the time and place of sale in some newspaper published in or nearest to said county, to sell the same to the highest bidder, for cash, at the residence of the said J. Hall, and to execute title to the purchaser, and of the proceeds to pay, first, the expense of seizing, advertising, selling and conveying; and secondly, the amount with interest that may be due and unpaid on said notes; and lastly, shall return any surplus of the proceeds to the undersigned.” This instrument, dated December 28th, 1874, was duly executed, acknowledged and deposited with the judge of probate for record within sixty days after its execution and was properly recorded.

The defendants introduced evidence showing that the plaintiff had sold all the “corn crop” produced on the said plantation, and that the purchaser was gathering the corn, and had hauled off a part of it without the consent of Mary A. Grady; that ho had traded off the mare before the issue of the attachment, “for the wrongful and malicious suing out of which the suit was brought;” and that the said note was unpaid at that time.

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