Tompkins v. Toland

Moore, Associate Justice. The court did not err in holding that the sureties in the sequestration bond might be joined in an action with the principal, for the recovery of damages for the wrongful suing out the writ, without a breach of the bond by the principal having been previously judicially ascertained. This construction of the obligation is believed to be to the advantage of the sureties as well as the obligee, and certainly the obligor has no good ground for objecting to it. The construction contended for by the plaintiff’s counsel would occasion a circuity of action, delaying and embarrassing the obligee in obtaining redress for the injury done him by the wrongful suing out of the writ, and would also subject the sureties to the costs of two suits instead of one, and to the possible damage of an excessive or improper judgment against the principal, by his collusion with the plaintiff, or his neglect to make a proper defense to the action. The sureties have an immediate and direct interest in the amount of damages for which they are bound, in default of their principal, being properly ascertained. Therefore, upon principles of equity, they are proper parties to a suit by which [590] this is to be clone. And although we know of no case in which the precise question has been before this court, this is believed to be the construction which has been uniformly given to these and other similar bonds by the profession, and' acted upon by the courts. (See Portier v. Fernandez, 35 Tex., 536; Ponton v. Bellows, 22 Tex., 681; Martel v. Martel, 17 Tex., 391; Frances v. Northcote) 6 Tex., 185.) A like ruling seems to have been made in other States on a precisely analogous question in reference to the liability of the sureties on attachment bonds. (Herndon v. Forney, 4 Ala., 243; Churchill v. Abraham, 22 Ill., 55.) The demurrer to the petition was properly overruled. It is quite manifest that the suit was brought for' damages alleged to have been sustained by the estate of Joseph Toland, deceased, by an unlawful seizure of property of said estate. It is true, there are in the original petition some allegations of personal wrongs and injuries to the administratrix, which seem to have been intended as matter of aggravation, which are not at all pertinent .to the action for the injury to the estate; to which an exception, if taken, should have been sustained. The objections to the evidence, shown by the bills of exception, are without force. That touching the validity of the sequestration bond for want of a scroll and seal, has been heretofore decided by this court, and must now be regarded as finally settled. The evidence of the witness Wallace though evidently not of so satisfactory a character if it stood alone, as it would have been if he had stated the market-price of the cotton at the different periods to which his attention was addressed, it cannot be said that it is altogether inadmissible. Though the statement he makes is a conclusion, still it is a conclusion of facts which he may know and be able to testify to, just as readily and certainly as that the cotton was worth so much per pound on the days in question. The real objection, if there is any, to the evidence is rather to its proper weight with the jury than to its admissibility. [591] By the next assignment of error, we are called upon to review the action of the court in overruling the motion for a new trial. An examination of the entire testimony which went to the jury, constrains us to say, that it is so manifestly insufficient to support the verdict, and the damages found by the jury are, in our opinion, so glaringly excessive, that we are forced to the conclusion, notwithstanding the very objectionable generality of the assignment, that this motion should have been sustained. The evidence, which was admitted over appellant’s objection, shows a depreciation of only some thirteen or fourteen hundred dollars, in currency, in the value of the forty-one bales of cotton, which was prevented from being sold by the sequestration, from the time of its seizure to the dismissal of the suit; and the current price of cotton, during the time the suit was pending, testified to by the witness Thompson, shows that the depreciation was certainly no more. The witness Wallace, it is true, also states that the cotton, when levied upon, was worth $250 a bale, and that the estate of Toland was damaged to the extent of one third of its value. Evidently, this statement can only be reconciled with his previous testimony, by supposing that he must have had reference in this part of his deposition to the price for which the cotton ultimately sold, some considerable time after the dismissal of the sequestration suit, and not to its depreciation while the suit was pending. Certainly, if the administratrix or her agents withheld the cotton from market after the dismissal of the suit, she cannot hold Tompkins responsible for the'loss sustained by its subsequent decline in value. Bor can she justly attribute to him the damage resulting from the want of proper attention and care of the cotton, after she replevied it from the sheriff. The other assignments of error are too general to require notice, unless it was plainly apparent that obvious injustice had been done plaintiff in error by the court, in some of the rulings thus complained of. As this is not manifestly the fact, we shall make no cbmment upon them. [592] For the error of the court in overruling the motion for a new trial, the judgment is reversed and the cause remanded. Reversed and remanded.