This is a second action on the same attachment bond executed by N. O. Hamilton et al. prosecuted by the plaintiff, M. L. Maxwell. The parties are the same, the cause of action is the same, and the same recovery was sought in the former action as is sought in this... The plaintiff, Maxwell, took a non-suit-in the former action, and there Avas judgment against him for the costs. He has not paid that judgment. On these facts the court erred in overruling defendants’ motion to stay all further proceedings in this cause .until the plaintiff pays the costs in the former suit. — Ex, parte *26Street, 106 Ala. 102; Ex parte Shear, 92 Ala. 596; 23 Am. & Eng. Encyc. of Law, pp. 527-8.
The facts adduced on the trial do not show .that any valid' levy of the writ of attachment was made. The-officer attempting or intending to make the levy did not take possession of or assume dominion over the property,, but at the most only, upon viewing it — certain lumber-piled up in the yard of a saw-mill and, in part, at a railway depot — endorsed a levy on the writ and posted a notice nearby the property, that he had levied on it. Abrams v. Johnson, 65 Ala. 465; Goode v. Longmire, 35 Ala. 668; Stanton v. Heard, 100 Ala. 515; Waples on Attachment, §289; 1 Shinn on Attachment, §§207-8-9.
But the parties to the writ treated this as a valid levy, and the property was subsequently sold under a venditioni exponas made and executed as upon a valid levy. Under these circumstances the original invalidity of the-levy cannot be availed of by the defendants in this action. — Drummond v. Stewart, 8 Iowa, 341; Flournoy & Epping v. Lyon & Co., 70 Ala. 308.
No exemplary, vindictive or punitive damages are recoverable under the complaint in this case. To the recovery of such damages, it was essential that the complaint allege that the attachment was sued out without, the existence of any statutory ground therefor, and also-that there was no probable cause for believing that the ground upon which the writ was sued out existed. Charge 7 requested by defendant should have been given, McLane v. McTighe, 89 Ala. 411; Crofford v. Vassar, 95 Ala. 548; Schloss v. Rovelsky, 107 Ala. 596; Bank v. Jeffries, 73 Ala. 183.
Whether plaintiffs in attachment acted with malice in suing it out, was to be gathered by the jury from all the circumstances bearing upon that inquiry, and it was not competent for them to testify as witnesses that they entertained no ill will or malice towards the defendant when the attachment'was sued out.
Charge 5 refused to the defendants assumes that the giving of property by the plaintiff to his sons in any way was sufficient to show probable cause for suing out th.e attachment. It also assumes that both plaintiff’s sons were minors, which is not the fact; and is bad for other reasons.
Reversed and remanded.