Kirksey v. Jones, 7 Ala. 622

Kirksey v. Jones

7 Ala. 622 | Ala. | 1845

GOLDTHWAITE, J.

— 1. If there was no indication of the legislative will, that this action should be governed by rules different from those which obtain in suits for malicious prosecutions, the strong analogy there is between the two would probably induce the same conclusions; but when the remedy by process of attachment was first given in this State, the plaintiff, as a prerequisite to the process, was directed to give bond with security, conditioned to be forfeit if the attachment was wrongful!y, or vexatiously sued out; thus indicating, that the mere wrongful recourse to this process was a sufficient cause of action. This was the conclusion arrived at, at a very early day, in this Court. [Wilson v. Outlaw, Minor, 367.] The fifth section of the act of 1837, passed since that decision, expressly provides, that when any original attachment shall have been wrongfully, or vexatiously sued out, the defendant therein may, at any time, commence suit against the plaintiff, and recover any damages which he may have sustained; or to which he may be entitled, on account thereof, whether the suit be ended or not. [Clay’s Dig. 61, § 32.] In actions for a malicious prosecution, malice is an essential matter, in the absence of which the action cannot be maintained, but in a suit of the kind we are now considering, it is only important, in connection with the question of damages.

2. It will be seen that a distinction seems to be hinted at, when the statute speaks of damages which the defendant' in *627the attachment may have sustained, as distinguishable from those to which he may be entitled, on account of the wrongful, or vexatious suing out of this process. Whenever an attachment is wrongfully sued out, and damage is thereby caused to the defendant in the suit, he is entitled to recover for the actual injury sustained by force of the statutory provision. And if, in addition to its being wrongfully sued out, it is also vexatiously, or in other terms, maliciously sued, then the defendant, upon the principle which governs the correlative action for a malicious prosecution, may recover damages as a compensation for the vexatious or malicious act; or in the terms of the statute, such damages as he may be entitled to on account of the vexatious suit.

3. In the present suit the allegation is, that the attachment was sued out without any reasonable or probable cause, and for the purpose of vexing and harassing the plaintiff. This we consider as substantially asserting, that the act was done wrongfully and vexatiously, for we cannot perceive how one can, without any reasonable cause, purposely vex and harass another, and'yet escape the imputation of acting maliciously. We have already shown that the declaration would be good, so far as to warrant the recovery for the damages actually sustained, if it was only alledged that the attachment was wrongfully sued out, but as with the averments it contains, damages in the same nature as those given in suits for a malicious prosecution might be given, if warranted by proper evidence.

4. We consider there is no substantial distinction, whether the attachment sued out is original or ancillary, notwithstanding the statute speaks of those which are original only. The reason of the peculiar wording of the statute most probably grew out of the fact, that the act of 1S37, is a mere compilation of former statutes on the subject of attachments, and the section referred to, was introduced to avoid the abatement of the attachment suit, by a plea, that the cause for issuing did not exist, as was held by this Court, in Brown v. Massey, 3 Stewart, 226. Precisely the same bond is required to be given in both cases, and there is no reason which, will warrant a suit-for wrongfully suing out the process as original, which does not apply where it is ancillary to a suit already commenced-

*6285. There can, we think, be no serious question, that the general authority given to an attorney at law, is sufficient to warrant him in suing out an attachment, whenever the facts exist, which will warrant it. It is said, that a letter of attorney to sue for, receive, and recover a debt, authorizes the attorney to arrest the debtor. [Paley on Agency, 160.] If this is true of a mere private person, the rule applies with equal force to one who is authorized by law as an attorney. The general rule is, that an authority is to be construed as to include all the necessary, or usual means of executing it with effect. [Howard v. Bailie, 2 H. B. 681.] It is even questionable, whether the general authority implied by the committing of business to an attorney at law, can be limited by special directions to act only in a particular manner, or upon the happening of a particular event; as such directions could not be known to those upon whom the general authority would act, or if known, the other party has no means to control the action of the attorney. An illustration of this rule would be shown, if a debtor was to apply for his discharge from arrest, on the ground, that it was made contrary to the instructions of the principal. Upon grounds of public policy, the act of an attorney at law is generally considered as the act of the client, if done within the general scope of the business of an attorney, though in point of fact, no authority has ever been given; and the exception is, only, where the attorney is unable to respond in damages for his unauthorized assumption of authority. So, too, this class of agents seem to have an exemption from liability which is peculiar. Thus, if one sue for a debt which he knows to be released, no action will lie against him, although he was a witness to the release. [Paley on Agency, 317.] These citations are sufficient to show, that the authority to sue out an attachment, is within the scope of the power of an attorney, and therefore, the principal is necessarily answerable in damages for the abuse of it. This conclusion shows, that the refusal of the Circuit Court to give the charge requested, was free from error, as that assumes, that the defendant was not liable, if the attorney had gone beyond his instructions.

6. Although the client is thus chargeable, even where the attorney goes beyond his instructions, when the unlawful act is *629within the scope of his general powers, it does not follow, that he is liable in any way for the maliciousness, with which he may have been pursued by the attorney. So far as malice entered into to the wrongful suing out of this attachment, we think it very clear, that the client cannot be charged on account of this feeling in the attorney. It is a rule of universal application, that the principal is not answerable criminaliter for the act of his agent. [Horn v. Nichols, 1 Salk. 289.] And whenever damages are increased in consequence of malice entering into the act unlawfully done, this increase is, by way of punishment of the oifender, as well as compensation to the injured party for his wounded feelings.

7. In the charge last given to the jury, we think the Circuit Court mistook the law. The question between the parties is, whether the attachment was wrongfully, or vexatiously sued out, and it seems to us a complete defence to the action, if the defendant, is able to show that any one of the causes existed which would warrant him in resorting to this process. The question is, not whether the precise ground stated in the affidavit is true, for it is obvious that the plaintiff has sustained no legal damage by the writ, if it was proper to be issued by changing the terms of the affidavit. The decision in Johnson v. Hale, 3 S. &. P. 331, that the affidavit cannot be made in the alternative, so far from showing that proof of this description, is no defence to the action, seems to us to indicate a different rule, when the defendant in the attachment cause complains of injury.

This conclusion renders it unnecessary to consider, whether the removal of the property of a debtor out of the State with intent to avoid the payment of the debt sued, is a fraudulent disposition of them within the meaning of the attachment law.

8. It is supposed however, that this charge is abstract, because the evidence is not stated from which alone it would be proper. We do not think this a just application of the rule, for here the charge is affirmative, and either given by the Court of its own motion, or, at the instance pf the other party, and thus within the rule settled in Peden v. Moore, 1 S. & P. 71.

For the error we have just ascertained, the judgment of the Circuit Court is reversed, and the cause remanded.