44 Miss. 132 | Miss. | 1870
The judgment of the circuit court of Adams county was affirmed by the high court of errors and appeals at June
The statute, makes it the duty of the jury, if they shall find for the defendant, to assess the damages for wrongfully suing out the attachment. The defendant is entitled to all damages sustained, as the result of the wrongful act.
It was in proof, that the agent of Mrs. Bailey had the cotton on the market at Natchez for sale, at the time of the levy by the sheriff. It is quite evident that the wrongful act of the plaintiffs, Fleming & Baldwin, prevented and defeated a sale, and- that a loss accrued to Mrs. Bailey of the difference in the price then, and when the cotton was restored to her on the dissolution of the attachment, and such compensation she ought to have, unless some rule of the law forbids it.
. We think the jury, trying the issue of abatement, have as large a scope to consider and estimate the damages, as in a suit on the attachment bond. In Barbour v. Fisk, 30 N. Y.
In Horne v. Belcher et al., 11 La. Annual Rep., 321, pending the sequestration of a note, the makers became insolvent. On suit on the sequestration bond, the plaintiff was allowed for his damages, the amount of the note. The court say, the sequestration had the effect of suspending the collection of the note, and of placing it beyond the reach of commerce, and had this not been done, it is not improbable it would have been paid at maturity.
Meshke v. Van Dorn, 16 Wisconsin Rep., 323, was attachment levied on wheat; the plaintiff claimed as part of his damages, the depreciation in the value of the wheat. It was ruled that the measure of damages was the difference in the value of the article from the-time it was taken out of defendants possession, and its value at the time of its re-delivery. There was no error, therefore, in the principle upon which the jury assessed the damages, for the wrongful suing out of this attachment. Without reciting the testimony, we are satisfied that the verdict is supported by the evidence.
Nor is there anything in the affidavit of John Fleming and H. M. Baldwin in support of the motion for new trial, which would entitle them to another trial. It is not perceived what
If the testimony set out in Baldwin’s affidavit had been before the jury, it could not have changed the result. The real question was the value of the cotton when attached, and when re-delivered. But when this sort of application is made, the party must offer a reason why the witness was not produced on the trial, and must also, if possible, produce the affidavit of the witness, in order that the court may know what the witness will depose, and its materiality.
Wherefore we affirm the judgment of the circuit court.