Jackson v. SmithJackson v. Smith
- Reporters:
- Before:
- Stone
Jackson, as the agent of Wilcox, Gibbs & Oо., sued out an attachment against Smith, and himself with another became sureties on the attachment bond, with condition to “prosecute said attachment to effect, and pay the said defendant all such damages as hе may sustain by the wrongful or vexatious suing out said attachment.” The present suit was brought by Smith on the attachment bond, and alleges that that suit was both wrongful and vexatious. The plaintiff also claims special damages,first,for costs and attоrney’s fees incurred in defending said attachment suit; second,in havingliis property seized and taken from his possession, and third, in the loss of his credit and good name, in consequence of the suing out of said attachment. The suit is against thе sureties on the bond —the attaching creditors not sued.
Unless the attachment was wrongful, there should be no recоvery ; for vexation without wrong gives no right of action. If no one of the statutory causes for attachment existed in fact, then the attachment was wrongful, no matter how honestly or sincerely the agent may have acted in suing it оut. And for such wrongful act, although done by an agent without express direction, the principal and all the bondsmen аre liable. And when attachment is sued out by one having probable cause for believing the facts exist, which, if true, wоuld authorize attachment, then only actual damages can be recovered, although in fact no ground еxisted. So, if in addition to the absence of statutory ground for attachment, there be malice or vexation in suing оut the writ, then damages may be recovered beyond the actual injury; and if there be no sufficient evidence оf such probable cause for belief, the jury may infer malice or vexation from the absence of such proof. And, no cause for attachment in fact existing, if this statutory and *102somewhat extraordinary remedy be resortеd to harshly, rashly, recklessly, or wantonly, the jury should consider this in determining whether there is malice or vexation. The principal, however, is not responsible for the malice, vexation, or wantonness of the agent in suing out the prоcess, unless he authorized or participated in it; and such authority or participation, to render the principal liable, must be proved. It can not be inferred from the mere relation of principal and agеnt. And in a suit on the bond, whether against the principal or surety, the unauthorized malice or vexation of the agеnt can not be the ground of recovery, and should not be allowed to go to the jury. The relation of princiрal and agent in such service, when there is no evidence to connect the principal with the transaction, other than the fact that the process is sued out by agent, fastens a liability on the principal for aсtual damage, if the writ be wrongful. It goes no further. —1 Brick Dig. 171, §§ 263 et seq.; Hamner v. Pounds, 57 Ala. 348; Durr v. Jackson, 57 Ala. 203; Bolling v. Tate, 65 Ala. 417; Lienkauf & Strauss v. Morris, 66 Ala. 406 ; Pollak v. Gantt, 69 Ala. 373 ; City National Bank v. Jeffries, 73 Ala. 183 ; Foster v. Napier, 74 Ala. 393 ; Kirksey v. Jones, 7 Ala. 622 ; Floyd v. Hamilton, 33 Ala. 235.
Damages, to be recoverable, must be the natural and proximate result of the wrongful, or wrongful and vexatious suing out of the attachment. They must not be the accidental, cоntingent, or speculative consequence. These furnish too variable and uncertain a standard for the measurement of pecuniary liability. We have, in our various rulings, settled very many, if not all the questions this record presеnts. We will not recapitulate all we have said, but will refer to some of the cases in which we have expressed ourselves. In Bolling v. Tate, supra, we said : “ The fees (attorneys’) recoverable are not necessarily for the defensе of the whole action. They are limited to that part of the defense, or the whole, as the case may be, that may be rendered necessary by the writ of seizure, or injunction complained of.” See also Hamner v. Pounds, supra. So, in Bolling v. Tate, we sаid : “ The circuit court rightly disallowed plaintiff’s claim for expenses, in coming from Pensacola to Greenville. This was but the accident of the case, and too remote to be the subject of a recovery.” The cаse of Foster v. Napier, 74 Ala. 393, was a suit on a detinue bond. The plaintiff, against the objection of defendant, was allowed to prove his loss of time and hotel bills paid, first, in procuring sureties on his replevin bond, and, second, in attending the trial of the case. We said: “In this the circuit court erred. Such damages are too remote and variable.” Any damage аctually sustained by the seizure and detention of the chattels, if *103the attachment was wrongful, is a legitimate subject оf recovery. — 1 Sedg. on Dam. (7th Ed.) 218, note a; 2 Wait Ac. and Def. 463; Sutherland on Dam. 165-6 ; Field on Dam. 423.
The circuit court erred in the following particulars:
In receiving evidence of the prior attachment sued out:
In allowing the plaintiff to testify that the еffect of the attachment on him was, to prevent him from making any crop, ■and from doing any business, and that it ruined him.
In permitting the plaintiff to state where and how he obtained the money which he placed on deposit with his surety on thе replevin bond, unless the fact of such deposit had been first proved against him.
In permitting testimony as to how plaintiff had lived since his removal to town, unless this was in rebuttal to something proved against him.
In receiving proof that Smith was a man of limited means.
In permitting the witness Willis to testify to what plaintiff said to him about going to Texas. Such statement is some times allowed to be proved as res gestee, but it is only as explаnatory of some act done, or enterprise entered upon. — 1 Brick. Dig. 843-4, 5, 6, §§ 556, 576, 590, 591, 593. We find no evidence in this record tо authorize the proof of this declaration by plaintiff. The same rule applies to testimony given by Mary Seals.
Charge number three, given at plaintiff’s instance, is faulty, in that it permitted plaintiff to recover for time lost in attending to the suit. Charges four, five and seven, given for plaintiff, are misleading.
Of the chages requested by defendant, and refused, ten in number, all should have been given, except four and five.
Reversed and remanded.