Com. ex rel. Cord v. Magnolia Villa Land & Improvement Co.

Opinion by Me. Justice Fell, This action was upon a bond given in a proceeding under the Act of March 17, 1869, and its supplements, by which the personal property of the plaintiff was attached. The condition of the bond follows the language of the Act of 1869, as amended by the Act of May 24, 1887, and is : “ Now the condition cif this obligation is such that if the said plaintiffs shall fail to prosecute such attachment with effect, or if such attachment be quashed, dissolved or ended, the said plaintiffs shall pay to the said defendants all legal costs, fees and damages which the said defendant may sustain by reason of such attachment, then the foregoing obligation is to be void; otherwise the same shall be and remain in full force and virtue.” The attachment was issued May 13, 1890, and, after hearing, dissolved March 19, 1891. Of the numerous assignments of error, it is necessary to consider only the twelfth, which must be sustained, as it was left open to the jury to find a wrong measure .of damages. The recoveiy allowed by the act is for all legal costs, fees and damages sustained by reason of the attachment. This would include all damages for pecuniary loss ordinarily and naturally resulting from the seizure of the goods, such as loss of sales, interruption of business and expenses necessarily incurred, but not loss that was indirect or consequential, or punitive damages recoverable for the malicious use of civil process. Any suit may be said to injure to some extent the business standing of a defendant, and to cause damage ; but the ordinary penalty for-bringing an unfounded action is the recovery of costs, and recovery for the misuse of civil [102] process is confined to cases of the seizure of the person or goods of the defendant. This was the case at the time of the passage of the Act of 1869, and the only additional penalty provided by it was liability for damages, as well as for costs, sustained by reason of the attachment. The Act of 1887 gave the additional penalty of the payment of fees. A party whose goods have been attached may recover for the malicious use of civil process if the facts warrant it, but, in a proceeding on the bond executed in pursuance of the requirements of the statute, the liability of the attaching creditor and his surety cannot be extended beyond its terms. This view seems to have been entertained by the learned judge before whom the case was tried, who submitted it to the jury in a careful and accurate charge. They returned for further instruction, and by what was doubtless an inadvertency it was said that there could be a recovery beyond the plaintiff’s pecuniary loss. ' It was thus left to the jury to take a wrong rule in assessing damages, and for that reason the judgment must be reversed. The twelfth assignment of error is sustained, the judgment is reversed, and a venire de novo granted.