96 Ga. 728 | Ga. | 1895
According to the rules of the common law, and according to the adjudications of this court as well (see Sledge v. McLaren, 29 Ga. 64, and Wilcox v. McKenzie, 75 Ga. 73, and cases cited in the opinion of the court pronounced in the latter case), an action on the case for the recovery of general damages resulting from the suing out and levy of an attachment proceeding by garnishment or otherwise, cannot be maintained unless it be alleged in the declaration and proven on the trial that the proceeding was instituted both with malice and without probable cause. These are the concurring conditions essential to the maintenance of that action. But under our code, §3266, neither of these conditions is essential to the maintenance of an action upon a statutory bond given to indemnify the defendant in the attachment case against damages sustained by him in consequence of the wrongful suing out of the attachment.
In the present case the suit is upon a bond given under the section of the code indicated, and the declaration, as amended, alleged the execution of the bond and its breach by the defendant. Under the judiciary act of 1799, it was necessary, before the defendant in an attachment suit could sue on the bond filed by the plaintiff and recover a judgment against him and the securities, that he ascertain, by the recovery of a judgment against the plaintiff the amount of damages to which he was entitled. See Sledge v. Lee, 19 Ga. 411. According to that act, which was of force prior to the adoption of the present existing law,.the obligors in a bond executed to authorize the issuing of an attachment and garnishment, were bound to pay “all costs which may be recovered by the defendant in case the plaintiff suing out such attachment shall discontinue or be cast
Counsel for the plaintiff in error cited and pressed upon us, with great confidence, the decision of this court in the ease of Sledge v. McLaren, supra, as controlling the question made in the present case; and but for his earnestness in that contention, emphasized upon an application for rehearing, which latter was denied, we would not deem it necessary to refer to it. It will be observed, upon an examination of that case, that it was an action on the case for general damages, in which it was sought to recover, without proof that the attachment was sued out with malice and without probable cause. The distinction between the two is this: The present case is an action for a breach of covenant as expressed in the bond. That was an action ou the case for damages inflicted by the wrongful act of the plaintiff', and wholly independent of the covenant expressed in the bond. According to the learned justice delivering the opinion of the court in that case, it was insisted, upon argument before the court, that so much of the rule of the common law as required proof of malice and the absence of probable cause to maintain an action on the case for damages, was repealed by the attachment
The law now of force, incorporated in section 3266 of the code, was not considered by the court in the adjudication of the case above referred to, and for the obvious reason that its provisions relate to damages recoverable in an action different from the one then under review. The proposition that the defendant in an attachment suit must first recover in an action on the case before he could recover in an action on the bond, had been previously decided by this court in the case of Sledge v. Lee, 19 Ga. 411, supra, and at the conclusion of his opinion upon that subject in the case last mentioned, Mr. Justice Lumpkin, speaking for the court, recommends remedial legislation. The judgment in that ease was rendered on the 18th day of February, 1856. A reference to the journals of the house will show that the General Assembly was then in session and had under discussion a general law authorizing and regulating the suing out of
These considerations lead us to the conclusion, that where a bond is executed under section 3266 of the code, no preliminary recovery is necessai’y to the maintenance of an action upon such a bond for the recovery of the damages sustained or costs incurred by the obligee in the bond in consequence of the suing out of the attachment. According to the terms of the bond itself, the only condition precedent to a recovery thereon is that the plaintiff, the obligor in the bond, should have failed in his suit. If he fail to maintain his action, and fail to pay the damages sustained and the costs incurred, the breach
In the present case, the defendant sued out an attachment, caused it to be levied by garnishment upon certain money of the plaintiff, and failed ultimately to recover. This constitutes a breach of the bond and authorizes a judgment, within the penalty of the bond, against the defendant and his sureties for all damages which, the plaintiff sustained and all costs which were incurred by him in consequence of the suing out of the attachment. Such damages would necessarily include interest upon money held up by the garnishment proceeding pending the attachment. They would include reasonable attorneys’ fees necessarily expended by the defendant in the defense of the attachment proceeding, and as well such other reasonable and necessary expenses incident to the litigation as might be incurred by him in the vindication of his rights. "We think, upon the evidence as it appears in the record, the plaintiff was entitled to recover. The amount of his recovery we do not undertake to indicate.
Let the judgment of the court below be Reversed.