#### Charles P. Packer et al. v. Elizabeth Phillips.

Attachment—Surties—Action upon Bond—Costs.

1. In an action upon an attachment bond given in proceedings in aid of a pending action, this court holds, in view of the fact that the attachment was not of an original character, that the costs thereof are not recoverable herein.

2. Any damage covered by such bond is recoverable without having the same first assessed in an action for wrongfully suing out the attachment, notwithstanding the condition is to pay such damages as shall be awarded in any suit subsequently brought upon such ground.

[Opinion filed May 8, 1889.]

Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.

Mr. E. A. Sherburne, for appellants.

Mr. James B. Galloway, for appellee.

Gary, J.

This is an action upon an attachment bond, purporting to be executed by appellants as sureties for Mary J. Lewis, in an action by her against the appellee. The bond recites that Lewis had prayed an attachment, that the court ordered it, and that it was about to be issued, but there was no proof that it ever was .issued, or that it could have done any harm to the appellee if it had been.

She recovered in this case what appeared to be the general costs of the action that Lewis prosecuted against her unsuccessfully. As the attachment prayed was not an original one, hut in aid of a pending action, those costs were not covered by the bond. Wallis v. Keeney, 88 Ill. 370, and Jevne v. Osgood, 57 Ill. 340, are in principle the same as this case. If the appellee had sustained any damage covered by the bond, *121she might have recovered, without having her damages first assessed in an action for wrongfully suing out the attachment, notwithstanding the words of the condition are, to pay such damages as shall be awarded in any suit which may hereafter be bronghtfor wrongfully suing out the attachment. Churchill v. Abraham, 22 Ill. 455.

There being no proof to warrant the finding, the judgment is reversed and the cause remanded.

Reversed and remanded.