[Flournoy & Epping v. Lyon & Co.] as ground for escaping from the consequence of the wrongful or malicious use of the process.-Drummond v. Stewart, 8 Iowa, 344. It is settled here, that reasonable and necessary counsel fees, incurred in defending the attachment suit, are recoverable as actual damages, whether the attachment is merely wrongful, or wrongful and malicious.-Marshall v. Betner, 17 Ala. 832; Seay v. Greenwood, 21 Ala. 441. But the counsel fees now claimed were not incurred in defense of the attachment suit, but by the garnishees, or rather in defense of the garnishees. To the attachment suit the defendant never appeared or pleaded. Defense of the garnishees, though successful, and resulting in preventing a judgment against the defendants for the debt, was, as was said in Hamner v. Pounds, 57 Ala. 347, merely gratuitous, and thereby no liability could be fastened on the obligors in the attachment bond. In this action, it is necessary the plaintiff should, by appropriate averments, negative the truth of the particular fact or facts stated in the affidavit as the ground of attachment. The averment, though negative in form, and though it may involve the proof of a negative, casts upon the plaintiff the burden of proof; and he must, by evidence, either direct, or of circumstances from which it is a fair inference the facts did not exist, satisfy the jury there was not the specific cause of attachment. Tiller v. Shearer, 20 Ala. 507; O'Grady v. Julian, 34 Ala. 88; Durr v. Jackson, 59 Ala. 203. The fact that, in the defense of this suit, the defendants insisted plaintiffs had been guilty of a fraud which justified the suing out of the attachment, the Circuit Court in effect ruled, was a circumstance tending to show that they were actuated by malice in suing out the writ. If the evidence was satisfactory that there was no probable cause for suing out the writ, or that the defendants had subsequently come to the knowledge of facts which ought to have satisfied them the plaintiffs had not been guilty of fraud, persisting in the accusation is a fact which may be considered in determining whether they were not malicious or reckless in the commencement of the suit. Subsequent conduct often affords evidence of the motives by which former conduct was influenced. But the mere fact that the defendants attempted to prove fraud, and thereby show probable cause for the issue of the attachment, is not, of itself, a fact on which a fair inference of malice can be based. The instruction given by the Circuit Court, in reference to the injury to the credit of the plaintiffs, is abstract. The bill of exceptions purports to set out all the evidence, and there was none introduced tending to show the plaintiffs had suffered in credit because of the issue of the attachment. [Davis v. Snider.] There were several of the rulings of the Circuit Court inconsistent with these views; and its judgment must be reversed, and the cause remanded. Davis v. Snider. Statutory Detinue for Mill Machinery and Gearing. 1. Proof of consideration of written instrument.—In an action founded on a written instrument, which recites a particular indebtedness as its consideration, the true consideration may be proved to be a different indebtedness, which does not change the legal effect of the instrument. 2. Fraud in procuring execution of written instrument.-If a party's signature to a written instrument, he being illiterate and unable to read or write, is procured by fraudulent representations or practices on the part of the payee or grantee, the instrument thus signed being materially different from that which he intended to sign, and which he thought he was signing, this is fraud in the execution, and is available at law to defeat an action founded on the instrument. APPEAL from the Circuit Court of Pike. Tried before the Hon. JOHN P. HUBBARD. This action was brought by James A. Davis, against Mike Snider, to recover certain personal property, described in the complaint as "one four-feet water-wheel, and shafting and set of mill and gin gearing," with the value of the hire or use thereof during its detention; and was commenced on the 13th January, 1-81. The cause was tried, as the judgment-entry recites, on issue joined on the plea of non detinet. The plaintiff claimed the property sued for, under a written instrument signed by the defendant, dated the 7th June, 1880, in these words: "$430. Know all men by that I promise to pay James A. Davis, of Butler, Georgia, the sum of $430 dollars, by the 1st day of November next, for one four-foot water-wheel and shafting gearing for the purpose of running the grist and saw mill and gin bought of the said Davis in 1880; and to secure the payment of the above amount, I hereby agree that the said machinery is borrowed, and shall remain the property of the said Davis until the said amount is paid, as is now provided in the statute law of this State." The defendant's name was signed to this instrument by mark, attested by one D. Williams, who, being introduced as a witness by plaintiff, thus testified in reference to its execution: "His name to said instrument was in his handwriting, and he witnessed an instrument between the parties; but the one he witnessed, at the time he witnessed 70 315 101 552 70 315 104 507 70 315 117 610 118 379 70 315 124 431 70 315 135 516 [Davis v. Snider.] it, did not appear to him, as he recollects, longer than an ordinary note; and the instrument must have been folded up when he witnessed it, as the instrument when thus folded, being then shown to him, was about the size of an ordinary note; and that defendant made his mark to the instrument so witnessed by him, and made no objection at the time of making his mark." On this evidence, the court admitted the instrument as evidence. Said Williams, being afterwards examined as a witness for defendant in rebuttal, stated, "that his recollection was, from what the parties said, that the note was to be a plain note:" and an exception was reserved by the plaintiff to the admission of this evidence. As to the consideration of the instrument, and its execution, the plaintiff testified, as a witness for himself, "that the wheel and gearing sued for, which was admitted to be in the possession of the defendant when the suit was commenced, was worth $482.30; that defendant was indebted to him, at the time of the execution of said instrument, in the amount therein specified, for the said wheel and machinery, and said instrument was given for the said indebtedness; that defendant had been due and owing him, both for the property sued for, and for work on the mill-house, dam, &c.; that payments had been made, but the payments were made for the work; that the amount of said instrument was due for the wheel and machinery, and was now due, nothing having been paid plaintiff since the execution of said instrument." As to these matters, the defendant testified as a witness for himself, "that he could neither read nor write; that he was indebted to plaintiff, at the time said instrument was executed, in the amount therein named, but it was for working on the mill-house, dam, &c., and not for the wheel and machinery; that he had paid plaintiff for said wheel and machinery before he executed said instrument; that, when he signed said instrument, he thought it was a plain note, and did not know that it had a lien on his property; that he told plaintiff he would not sign anything but a plain note; that plaintiff never agreed to take a plain note, and never told him that he would take a plain note, nor that said instrument was a plain note, but all the time insisted on having a lien note, and refused to take any other kind of a note; that the note was not read over to him when he signed it, nor did he ask any body to read it for him, nor was it represented by plaintiff to be a plain note." The plaintiff objected to so much of this evidence as related to the indebtedness for which the writing was given, on the ground that it was "illegal, irrelevant, and incompetent, and because the instrument itself was the best evidence of the indebtedness for which it was given;" and he reserved exceptions to the overruling of his objections. There [Davis v. Snider.] was other evidence as to the matters of account between the parties at and before the execution of said instrument, partial payments made, and receipts given; and exceptions were reserved by the plaintiff to several rulings of the court in reference to these matters, which are not material to the points decided by this court. The plaintiff asked several charges to the jury, which were in writing, and one of which was in these words: "2. If the jury believe, from the evidence, that the defendant, at the time he executed said instrument to the plaintiff, was indebted to the plaintiff in the sum of $400, or other amount, and that said instrument was executed to secure the payment of said indebtedness, and the same has not been paid since its execution, then the instrument is supported by a sufficient consideration." The court refused to give this charge, and the plaintiff excepted to its refusal; and he also reserved an exception to a charge given by the court on the request of the defendant, in these words: "1. If the jury are reasonably satisfied, from the evidence, that there is nothing due the plaintiff for the wheel and machinery sued for, they must find for the defendant." The several rulings of the court on the evidence, and on the charges given and refused, to which exceptions were reserved, are now assigned as error. JNO. D. GARDNER, for the appellant, cited Hollenbeck v. De Witt, 2 John. 404; Henry v. Murphy & Co., 54 Ala. 246; MeGehee v. Rump, 37 Ala. 656; 1 Brickell's Digest, $65, $$ 866 et seq. STONE, J.-In refusing to give the charge numbered 2, asked by plaintiff, and in giving charge numbered 1, asked by defendant, the Circuit Court erred, as clearly shown in Ramsey v. Young, at the present term.-69 Ala. 157. In thus ruling, it is not our intention to preclude inquiry into the alleged fraud, charged to have been perpetrated by plaintiff in procuring defendant's signature to the instrument he relies on for recovery. If plaintiff fraudulently imposed on defendant, and procured his signature to an instrument he had not agreed to sign, did not know he was signing, and did not intend to execute, this amounts to fraud in the execution, which may be proved by parol, and, if satisfactorily established, justifies the jury in finding against its validity.-Swift v. Fitzhugh, 9 Por. 39; Morris v. Harvey, 4 Ala. 300; Mead v. Steger, 5 Por. 498; Paysant v. Ware, 1 Ala. 160; Dickinson v. Lewis, 34 Ala. 638. But, see, Goetter, Weil & Co. v. Pickett, 61 Ala. 387. Reversed and remanded. [Adams v. Sayre.] 70 318 94 609 70 318 96 339 70 318 107 341 70 318 114 610 70 318 132 112 Adams v. Sayre. Bill in Equity by Mortgagor, against Assignee of Mortgage, for Account and Redemption. 1. Filing bill in double aspect.-Under our practice, a bill may he filed in a double aspect, embracing alternative averments, when each aspect entitles the complainant to substantially the same relief, and the same defenses are applicable to each; but, if the claims to relief are so distinct as to require inconsistent and repugnant reliefs, and different 'defenses, the bill is multifarious. 2. Same.-A mortgagor, seeking to avoid a sale of the property under a power in the mortgage, and to redeem, may file his file in a double aspect-claiming relief, in the alternative, under an agreement between himself and the mortgagee, of which the purchaser had notice, or as matter of legal right arising from the relations between them. 3. Offer to do equity.-In a bill to redeem by the mortgagor, and to set aside a sale under the mortgage, at which his agent became the purchaser. an offer to pay what is due, accompanied with an averment of his ignorance of the amount, and his unsuccessful application to the defendant for an accounting, is sufficient. 4. Purchase by agent at mortgage sale.-An agent, having control of real estate, renting it out, collecting the rents, paying taxes and insur ance, and having power to sell, can not himself become the purchaser of the property at a sale under a mortgage, and hold it against his principal, especially where, by private agreement with the mortgagee, he induces the latter not to bid against him. APPEAL from the Chancery Court at Montgomery. The original bill in this case was filed on the 11th April. 1879, by William D. Sayre, against James R. Adams and Thomas Joseph; and sought a redemption of a certain brick store-house and lot in the city of Montgomery, and an account of the mortgage debt, rents, &c. The mortgage, a copy of which was made an exhibit to the deposition of Adams, was dated January 11th, 1873, and was given to secure the payment of a promissory note for $3,100, of even date with the mortgage, and payable twelve months after date, to William F. Joseph or order; which note was signed by said W. D. Sayre, and was given for money borrowed by him from said William F. Joseph. The note and mortgage were assigned by said W. F., after the maturity of the debt, to said Thomas Joseph; and on the 7th May, 1877, the debt being still unpaid, the property was sold by said Thomas Joseph, under a power contained in the mortgage, and was bought at the sale by said James R. Adams, to whom Joseph executed a conveyance as the pur |