Morris v. Price

2 Blackf. 457 | Ind. | 1831

Stevens, J.

This was an action of debt in the Rush Circuit Court, brought by the appellee against the appellants, on a jienal bond conditioned that the said Levi Morris should well, truly, and bona fide, prosecute a certain writ of attachment, which he was about suing out of the Rush Circuit Court against the goods, chattels, lands, tenements, credits, moneys, and effects of the-appellee, and pay to him all damages which he r might sustain in consequence of said proceedings on attachment, should the same be adjudged tortious or oppressive. The declaration sets out the bond and condition, and avers that the writ of attachment was sued out, brought to issue, and tried ill the Rush Circuit Court, and adjudged to be void, without cause, tortious, and oppressive, and that the plaintiff was much oppressed, put to great costs, trouble, and expense, in defending bimself against said false, feigned, and vexatious proceedings on attachment of said Levi. To this declaration the defendants demurred, and set down as causes of demurrer:—“1st, There is no averment in the declaration that the proceedings on attachment are finally ended; 2d, There is no special averment of any damages having been sustained, above the costs which defendants would be bound by the judgment at law to pay; 3d, There is no averment, that the proceedings on attachment were without just and probable cause/’ The demurrer was overruled and judgment given for the plaintiff, a writ of inquiry awarded, and damages assessed.

By a bill of exceptions it appears of record, that, after the jury was sworn to assess the damages, the plaintiff offered to prove that he had paid an attorney 10 dollars, to defend him against said writ of attachment; to the introduction of which evidence the defendants objected, but the Court overruled thd objection, and tlie evidence went to tbe jury. The errors complained of arc, 1st, The overruling the demurrer; 2d, The-permitting the evidence set out in the bill of exceptions- to go to the jury; and 3d, The rendition of the judgment in manner and form as it is rendered.

Smith, for the appellants. Wick, for the appellee.

The whole of the proceedings in this case are somewhat loose, informal, and irregular, but are all substantially good, except the l’endition of the judgment. On overrulirig the demurrer, the order of the Court should have been, that-the plaintiff should recover his debt and damages on the occasion of the detention thereof; but that judgment should not be given, until the truth of the breaches assigned were inquired into and the damages assessed. After that, final judgment should have been rendered for the plaintiff for the debt in the declaration mentioned with costs, and execution awarded for the damages assessed with costs. 1 Saunders, 58 and note 1.—3 Chitt. Pl. 280, 287.—Clark v. Goodwin, July term, 1820.— Glidewell et al. v. M'Gaughey, November term, 1830.—1 Blackf. Rep. Appendix, 437.

M‘Kinnet, J., having been of counsel in the cause, was absent. ' Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.