In an action, the gravamen of which is the wrongful and malicious suing out of an attachment, the defense may be rested upon the existence of any one' of the several grounds for the procurement of such process. — Kwksey v. Jones, 7'Ala. 622. The attachment which ..gave rise to this suit, was sued out upon the ground that the defendant in attachment was about to remove his property out of the State, so that the plaintiff would probably lose his debt, or have to sue for it in another State. Nevertheless, it was a matter provable in the defense of this action, that the defendant in attachment had fraudulently disposed of his property, or was about to fraudulently dispose of his property; for they are also grounds upon which an attachment may be obtained.
[2.] Evidence was produced on the trial of a sale which had been for some time under negotiation by the defendant in attachment, of a portion of his-property before the issue of the attachment, at what the, witness denominated “a low down price.” There was, also, evidence conducing to show an intention to dispose of his slaves. The plaintiff excepted to the ruling of the court below admitting the further evidence that the defendant in attachment, not long before the .attachment issued, admitted “that he was involved,” and “that he was broke.” This evidence was clearly pertinent to the question of the Iona fides of the conveyance made, as well as of that which was contemplated. The defendant had a right to show a fraudulent *636intent, as connected with the conveyance made and that contemplated, in support of the proposition, that the plaintiff had conveyed his property fraudulently, or was about to do so. The evidence above stated was, therefore, in the attitude in which the defense was presented in the cqurt below, admissible. It was so ruled by this court, upon a similar question, in Ya/rbrough v. Hudson, 19 Ala. 653. It must, however, be understood," that neither indebtedness, pecuniary embarrassment, nor insolvency, is a ground for the obtainment of an attachment ; and that neither can justify the wrongful suing out of an attachment, or mitigate the offense of malice in obtaining it. The pecuniary condition of the defendant is only admissible in evidence, when it contributes to support some proposition which becomes material on the trial. — Floyd v. Hamilton, 33 Ala. 235 ; Jones v. Lawrence, 36 Ala. 18.
[3.] It would be competent for the plaintiff to meet the defendants’ evidence, as to his embarrassed pecuniary condition, by proof of subsisting accounts due to him as a physician ; but such testimony could not be received, without evidence that they were just. We have some doubts as to the effect of the statement in the bill of exceptions, that the books of the plaintiff were correctly kept; and we therefore do not decide, whether the court erred in excluding the plaintiff’s medical books upon the proof made. The tax-assessor’s books were not competent evidence for the plaintiff.
[4.] The court committed no error, in admitting in evidence the attachments issued one day before the attachment in this case, in connection with évidence that notice thereof was had, before suing out the process, by two of the defendants, one of whom, as attorney, procured the attachment. Such evidence is admissible upon the question of malice. It is sAdecided in Yarbrough v. Hudson, 19 Ala. 653. But the attachment offered without proof of notice to the defendants, and the letter of Mrs. Lockhart, were clearly inadmissible.
[5.] The first charge asked by the plaintiff ought to *637have been given. If there was no debt, the attachment was wrongfully issued. — Spivey v. McGehee, 21 Ala. 417 ; Seay v. Greenwood, ib. 419 ; Sharpe v. Hunter, 16 Ala. 765 ; Marshall v. Betner, ib. 833 ; Jones v. Kirksey, 10 Ala. 839 ; Sackett v. McCord, 23 Ala. 851; Zeigler v. Hall & David, 23 Ala, 127 ; Garrett v. Logan, 19 Ala. 344. If the attachment was wrongfully sued out, there was a breach of the condition of the bond ; and the plaintiff had a right to recover nominal damages, if there was no actual damage.— Garnett v. Yoe, 17 Ala. 74; Sedgwick on the Measure of Damages, chap. 2. But he was 'entitled to recover any actual damage he may have proved. The charge asked could only be proper, where the evidence was such as to leave no room for controversy as to the right of recovery, if the jury were convinced by the evidence that there was no debt. Such was the case here. There was no evidence tending, in the slightest degree, to oppose' the plaintiff’s right to recover nominal damages, or the actual damages proved, if there was no debt. It was, therefore, the duty of the court, without hypothesis,-to have instructed the jury that the plaintiff was entitled to recover, if there was no debt upon which the attachment could issue.
Reversed and remanded.