47 Ky. 51 | Ky. Ct. App. | 1847
delivered the opinion of the Court
Pettit brought a suit in chancery, and obtained an attachment against Mercer. The debt, to secure th'e payment of which the attachment had been sued out, having been arranged after the institution of the suit, it was dismissed by the complainant. This suit is brought- on the bond executed by the complainant, upon suing out the attachment, which is conditioned substantially as required by the statute under which the proceeding in chancery was had, for the payment of all costs and damages sustained by the defendant in the suit by reason of the wrongful issuing of the order.
Has the defendant in the chancery suit, a right of action on the bond, in consequence, merely, of the dismissal of the suit by the complainant? The bond is not conditioned for the successful prosecution of the suit, but that the order for the attachment has not been wrongfully obtained. Unless, therefore, the order was procured wrongfully and without just cause, there is no breach of the condition of the bond, and no foundation
for any action thereon; although the complainant may have abandoned the prosecution of the suit, after it has been instituted.
In the progress of the trial in the Circuit Court, a question was raised, both m the pleas ottered, and instructions asked, in regard to the validity of a defence, based on the fact, that the attachment had been sued out in good faith, and without malice, the defendant having probable cause to believe the truth oí the matters charged in his bill, upon which the order for the
The extent, -however, to which the plaintiff has a right to recover in a suit of this kind, or in other words, his right to damages commensurate to the injury sustained by him in consequence of the suit i.n chancery and the extraordinary proceeding by attachment, forms the chief subject of inquiiy in this case. Has he a right to show that his credit has been seriously affected, his sensibilities wounded, and his business operations materially deranged, in consequence of the attachment having been sued out; and to rely upon these matters to enhance the amount of damages? Or is he to he confined to the costs and expenses incurred by him, and such damages as he may have sustained by a deprivation of the use of his property, or any injuiy thereto, or loss or destruction thereof, by the act of the complainant in suing out the attachment?
The defendant in the chancery suit has a right to bring an action on the case against the complainant for a vexatious and malicious proceeding of this kind. In such a suit, damages may be claimed for every injury to credit, business, or feelings. But to sustain such a suit, and enable the plaintiff to succeed, malice upon the part of the defendant, and the want of probable cause, are
If an order has been obtained without just cause, and an attachment has been issued, and acted on in pursuance of the order, the terms of the bond secure to the defendant in the attachment all costs and damages that he has sustained in consequence thereof. The condition of the bond is satisfied, and its terms substantially complied with by securing to him damages adequate to the injury to the property attached, and the loss arising from the deprivation of its use, together with the actual costs and expenses incurred.
It cannot be rationally presumed that the Legislature designed to impose on the security in the bond a more extensive liability. The statute is remedial in its character, and should be expounded so as to advance the object contemplated. To impose an almost unlimited liability on the security in the bond, sufficient to embrace every possible injury that the defendant might sustain, would be in effect, to defeat in a great measure, the object of the statute, by rendering it difficult, if not impracticable, for the complainant to execute the necessary bond.
The statute of 1837., to amend the act regulating proceedings against absent and non-resident defendants, (3 Stat. Law, 13,) authorizes the complainant, in certain cases, to make the attachment effectual, by notifying the defendant of the object and intention of the suit, without any order for the purpose, or the execution of a bond of any description. If the Legislature contemplated securing the defendant in the attachment, by the
We have come to the conclusion, therefore, although to defeat the action when brought on the bond, the defendant must show the existence of the causes, which under the statute, are sufficient to authorize the attachment to issue, or such of them as were alledged and relied on by the complainant as the foundation of the order ; yet the plaintiff, if he succeed, can only recover damages for the injury he may have sustained, by being deprived of the use of his property, or its loss, destruction or deterioration, together with the costs and expenses incurred by him in the defence .of the suit; and for all other injuries he may have sustained, he has to, resort to his action on the case against the complainant, in which action his right to a recovery will be governed and determined by the principles of law applicable to such cases.
On the trial of the cause, the plaintiff having introduced evidence conducing to prove a loss of credit, produced by the issuing of the attachment against him, and other injuries resulting from such loss of credit, the jury returned a verdict in his favor for five hundred dollars in damages. The verdict is not sustained by the law of the case, and a new trial should have been granted.
Wherefore, the judgment is reversed, and cause remanded for a new trial, and further proceedings consistent with this opinion.