Seay v. Greenwood
21 Ala. 491
Ala.
1852
Check Treatment
GOLDTHWAITE, J.

— The first question presented is, as to the right of the plaintiff below to recover in case for the wrongful suing out of an attachment. The fifth section of the act of 1837 (Clay’s Dig., 61, §32) provides, that when any original attachment shall have been wrongfully or vexatiously issued, the defendant therein may, at any time, commence suit against the plaintiff, and recover any damages he may have sustained, or to which he may be entitled on account thereof, whether the suit be ended or not. The legislature evidently intended, by the enactment of this statute, to make the wrongful suing out of the process referred to, of itsell] a sufficient cause of action, and in such case authorizes the defendant to recover for the actual damages sustained; and, if *495the attachment is sued out maliciously as well as wrongfully, to recover vindictive damages, without in either case waiting for the determination of the suit against him. Such was the construction given to this section of the statute referred to in Kirksey v. Jones, 7 Ala., 622, and we are satisfied that the decision was correct.

As to the evidence in relation to the costs in the magistrate’s court, it was properly admitted. The costs in that court were the necessary consequences of the act complained of, and, if the act was wrongful, were properly chargeable to the plaintiff in error. But the evidence as to the court cost upon the appeals taken by the defendant in error should have been excluded. These costs cannot be regarded as the necessary consequence resulting from the suing out of the attachment, and, if recoverable at all, it could only be as special damages, and in that case it would be necessary that the declaration should contain the appropriate averment, (1 Chit. Pl., 195-6; Donnell v. Jones, 18 Ala., 490,) and the allegation that the defendant had expended a large sum of money in the defence of the attachments, does not cover the costs on the appeals. But are these costs recoverable at all ? In the assessment of damages the rule is, that the natural and proximate consequences of the act complained of are to be estimated, but not those which are merely contingent, and which the injured party could have avoided, (Loker v. Damon, 17 Pick., 284;) and under the operation of this rule, he would not be permitted to charge his adversary with the costs of an appeal, which he had unnecessarily taken. The statute (Clay’s Dig., 815, § 16) has made ample provision for the protection of the appellant, by confiding to the court a discretion as to the imposition of the costs, according to the justice of the case, where the appeal is taken by the defendant, and the recovery of the plaintiff is less than the amount recovered before the justice; and unless such amount is reduced on the appeal, the defendairt is properly subjected to the costs, which are then to be regarded as the consequences of his own act. In the present case, it appears that the defendant in error received a consideration for the withdrawal of his pleas, and making no defence upon the appeals; but we do not see that he is thereby placed in any better condition as to the recove*496ry of these costs. He has agreed to, and does abandon the defence, and stands, so far as the judgment is concerned, as if he had none to make. The judgment is conclusive upon that question. Jones v. Kirksey, 10 Ala., 839. The admission, therefore, of the evidence in relation to the costs against the defendant in error upon the appeals, was erroneous, under the circumstances disclosed by the record.

As another trial may be had, it is proper to settle the only remaining question, which is, as to the right of the plaintiff below to recover counsel fees expended in the defence of the attachment. In Marshall v. Betner, 17 Ala., 832, we held, that when malice is the gist of the action, and vindictive damages recoverable, counsel fees reasonably and necessarily incurred might be proved, and considered by the jury in the assessment of the damages; but we see no just or sound reason why the consideration of these expenses, in the estimation of damages by the jury, should be confined to cases of malice. If the wrongful act of another renders the employment of a physician or surgeon necessary, the amount paid for their attendance and services is recoverable from the wrongdoer ; but if the injured party is compelled, in order to defend his rights or to protect his property, to employ counsel, is he to recover nothing for such expenses, ■without proof of malice? We understand the object of an action for a tort to be, the indemnification of the plaintiff for the wrong done, and that in such case the defi ndant is liable for all the damages which are the natural consequences of the act. 2 Greenlf. Ev., 210. If the defendant in attachment allows judgment to go without defence, under the decision in Jones v. Kirksey, supra, it is conclusive evidence against him that "the amount recovered was due, and he is thus precluded from showing that no debt existed; while if he employs counsel, and by his aid obtains a verdict showing that no debt was due, for the amount thus expended he is entitled to recover nothing, without proving that the party whose wrongful act forced him to incur these expenses was influenced by malice. The true rule we think is, that in either case the expenses for reasonable and necessary counsel fees are to be regarded as entering into the actual damages, and as such are recoverable. We would not, however, be understood as deciding that *497such expenses incurred in tbe action upon tbe tort itself, are governed by tbe rule we have laid down. That question is not presented by tbe record, and upon it we express no opinion.

Tbe judgment is reversed, and the cause remanded.