¶1The appellant brought this suit'against appellees Miller and Wright and the other appelleesas sureties on the official bond of Wright as sheriff of Clay - county, to recover damages for an alleged wrongful suing out and levy of an attachment and wrongful seizure of a certain stock of horses belonging to him. The petition, among other averments, alleged that defendant Miller brought two suits-against him, one in Wichita and another subsequently in Wilbarger county, upon a pretended judgment rendered against him in Iowa, in a suit in which there was no service upon him, and in which he neither appeared nor answered; and at the-same time sued out attachments in each of them, upon the-grounds “that he was about to move his property out of the State, without leaving sufficient remaining for the payment of his debts.” It also averred that the attachments were placed in the hands of Wright, as sheriff of Clay county, and were-levied upon a stock of horses belonging to plaintiff, “as they ran in their range in Clay county;” that at the time of the levy he was about to drive the horses to market, but was prevented by the levy from doing so for twenty days. It also alleged that at the end of this time he removed the horses to Caldwell, Kansas, but that one Herron, á deputy under Wright, followed him, took possession of the horses and drove them back into the-Indian territory for fifty days. It is not shown that the attachments had been released when the horses were removed.. It is-further alleged that Miller knew that he had no cause of action, against the plaintiff; that plaintiff was not about to remove his. property out of the State without leaving a sufficiency to pay his debts, as was known to Miller; that the attachments weré*615sued out wrongfully and maliciously, for the purpose of injuring and harrassing the plaintiff, and that Wright knew all these facts. The petition also alleged actual damages, and claimed a recovery therefor against all the defendants, as well as for exemplary damages against Miller and Wright. Wright and his sureties filed a joint demurrur to the petition, and Miller demurred separately.' Both demurrers were sustained, and plaintiff declining to amend, the suit was dismissed.
¶2We are of opinion that there was no error in sustaining the demurrer of defendant Wright and his sureties. The writs of attachment were valid and regular, and protected the sheriff in making the levy. However full his knowledge may have been of the insufficiency of the cause of action, or of the wrongful and malicious intent of Miller in suing out the attachments, it was his duty to make the levy. As we construe the petition, no actual possession was taken of the horses before plaintiff Rice removed them to Kansas; but the levy was made under article 3293 of the Revised* Statutes, by an indorsement upon the writ and notice to the defendant therein. The property, nevertheless, was in the constructive possession of the officer by the levy of the writ, and it became his duty to prevent their removal, and, if removed without his knowledge, to pursue and recapture them. For any loss that resulted to plaintiff by the seizure of the horses after he had driven them off, he can not recover. This was a lawful result from his own wrong, for which he has no cause of action.
¶3But as to the demurrer of defendant Miller, we think the court was in error. If the allegations of the petition were true, the attachment was both wrongfully and maliciously sued out. The effect of the levy, though there was no actual seizure of the horses, was to take them from the control of the plaintiff, and he is entitled to recover such actual damages as resulted to him by being virtually dispossessed of his property during-the time the levy was continued in force, provided he can show that the writs were wrongfully issued. If there was malice in issuing the process, he would be entitled to recover exemplary damages, and these are laid at a sufficient sum to give the court jurisdiction.
¶4For the error in sustaining the demurrer of defendant Miller ajid in dismissing the suit, the judgment is reversed and the . cause remanded. Reversed and remanded