McKellar v. Couch

E. W. WALKEN, J.: The principal question in this case is, whether an action on the case will lie to recover the damages sustained by the mere wrongful suing out of an attachment. By the ancient common law, no person could prosecute a civil action, without having in the first stage of it two or moi’e persons as pledges of prosecution; and if he failed in his suit, an amerciament, or fine to the king, was imposed on him. But this guard against unjust suits at length lost all its vigor, and evaporated into mere form; and in its stead, by various statutes, costs to the defendant were substituted. These costs were intended, and are considered, as a satisfaction to the defendant for the inconvenience of being held to defend a groundless suit; and except where statutes have otherwise provided, they are, in cases where no malice is shown, the only indemnity which the law secures to- the defendant. The general principle is thus broadly stated by Lord Coke: “ And therefore, where it is said that a man shall not be punished for suing of writs in the king’s courts, be it of right or wrong, it is regularly true.” — Coke Litt. 161, (a). This language must be held to refer to suits which are simply unfounded, not malicious. Eor the authorities all agree in holding, that if the suit be malicious, as well as unfounded, an action on the case will lie to recover the damages occasioned by it; while, on the other hand, the undoubted principle of the common law is, that the mere wrongful resort to legal process affords no ground of action. — Co. Litt. 161, (b), note; Lindsay v. Larned, 17 Mass. 190 ; McLaren, Ragan & Co. v. Bradford, 26 Ala. 618; Marshall v. Betner, 17 Ala. 87; McCullough v. Grishobber, 4 Watts & Serg. 121. It follows that, 'where an attachment has been sued out — 342 — wrongfully, bat without malice, the party injured cannot maintain an action on the case to recover the damages, unless there is some statutory provision giving him that right. To determine whether we have any statute which, properly construed, confers such a right, it becomes necessary to examine to some extent the history of our legislation upon the subject, and the course of decisions in reference to it. The remedy by attachment seeems to have been given as early as 1799, and was fully established and regulated by an act of the territorial legislature passed in 1807. By that act, the plaintiff in the attachment was required to give a bond, the condition of which was as follows : “Now, if the said plaintiff shall prosecute his suit with effect, or, in case he fail therein, shall well and truly pay and satisfy to the said defendant all such costs and damages as shall be awarded and recovered against the said plaintiff' his heirs, &c., in any suit or suits which may be hereafter brought, for wrongfully suing out the attachment, then the above obligation to be void.” — Laws of Ala. 11, 13, 15. In Wilson v. Outlaw, Minor’s R. 367, the precise question now before us was presented; and the court there held, that an action on the case would lie against the plaintiff in the attachment, if the attachment ivas sued out wrongfully, though without malice. In the opinion of the court in that case, the condition of the bond, above quoted, as required by the act of 1807, was especially referred to as a reason (though no't the only one) for the decision. If the court intended to decide that, independent of some statute authorizing the action, case would lie for the mere wrongful resort to the process of attachment, we should have no hesitation in saying that the decision could not be regarded as correct. But, if the decision is to be considered as resting upon the terms of the attachment bond then required, we are not prepared to say that it was wrong, though we would not be understood as affirming it to be right. The proposition, that the legislature had, by the form of the bond prescribed by the act of 1807, sufficiently — 343 — indicated, that tbe defendant was authorized to bring an action on the case against the plaintiff for wrongfully suing out the attachment, seems to be supported by the decision of the supreme court of North Carolina, in Davis v. Gully, 2 Dev. & Batt. 360. In that case it was determined, that a bond, with condition to be void upon the payment of such damages as might be recovered of the principal obligor, for wrongfully bringing a suit in equity against the obligee, is a guaranty that the principal shall be able to satisfy any judgment obtained against him in an action on the case for wrongfully filing the bill. It seems to be intimated in some of the cases, that no action would lie upon such a bond as that prescribed by the act of 1807, until the damages had been ascertained in a distinct suit against the plaintiff. — See Herndon v. Forney, 4 Ala. 246 ; Alford v. Johnson, 9 Porter, 320; Garrett v. Logan, 19 Ala. 347. The language of the condition seems to indicate, that damages for wrongfully suing out the attachment might be recovered of the principal, in a suit against him, not founded upon the bond; and inasmuch as the liability of the sureties is made to depend upon the preliminary suit against the principal, the implication is, perhaps, not reasonable, that the statute, by prescribing such a condition, must be considered as having conferred on the injured party the right to bring an action on the case against the plaintiff. If the decision of "Wilson v. Outlaw can be supported at all, it is upon this ground alone. The only basis on which it can rest being the terms of 1he bond as prescribed by the act of 1807, it follows that, when that act was in respect of the condition of the bond repealed, the decision at once ceased to be authority. In 1833, the attachment law was revised. This act, in its sixth section, prescribed precisely the same form of bond as that required by the act of 1807. — Aikin’s Dig. 38, § 6. In 1837, another statute was passed, by which it was enacted, that the condition of the bond should be to prosecute the attachment to effect, and pay the defendant all such damages as he may sustain by the wrongful — 344 — or vexatious suing out of the attachment. — Acts of 1837, p. 62. In Lowe v. Derrick, 9 Porter, 415, it was bold, that this act was a repeal of so much of the 6th section of the act of 1833, as prescribed a different condition for the bond, and a re-enactment of the 3d sectiou of that act. The 6th section of the act of 1833 was, as already stated, but a re-enactment of that part of the act of 1807, which constituted the only basis on which the decision in Wilson v. Outlaw could be supported. The basis of that decision being thus destroyed, we cannot regard it as an authority entitled to any weight in this case. The material distinction between the bond required by the act of 1807, and that prescribed by the act of 1837, is clearly pointed out in Herndon v. Forney, 4 Ala. 246; see, also, Alford v. Johnson, 9 Porter, 320; Garrett v. Logan, 19 Ala. 347; Boyd & Walker v. Martin, 10 Ala. 700, (702.) After the act of 1837 was passed, the light of the defendant to bring an action on the case against the plaintiff, for wrongfully suing out an attachment, still continued to exist, but it was derived from a new and altogether different source. After the passage of that act, the right to bring such an action depended, not upon the condition of the bond required to be given, but upon the proviso to the 5th section of that act, which was in these words: “ Provided, however, that whenever any original attachment shall have been wrongfully or vexatiously sued out, the defendant therein may, at any time, commence suit against the plaintiff suing out the same, and recover any damages which he may have sustained, or to which he may be entitled on account thereof, whether the suit commenced by attachment be ended or not.” — Clay’s Dig. 61, §32. In Donnell v. Jones, 13 Ala. 501, which was an action on the case for wrongfully and maliciously suing out an attachment, the court said: “ On the part, of the plaintiff in error it is insisted, that the action is misconceived; that the plaintiff below should have brought his action upon the bond given by Donnell, in order to procure the issuance of the attachment, as required by statute. — Clay’s Dig. 61, § 34. We do not agree with the counsel in this — 345 — position. The act of 1837 provides, that ‘ when any original attachment shall have been wrongfully or vexatiously sued out, the defendant may, at any time, commence suit against the plaintiff suing out the same, and recover any damages which he may have sustained, or to which he may be entitled on account thereof, whether the suit commenced by attachment be ended or not.” In Seay v. Greenwood, 21 Ala. 494, which was an action on the case for wrongfully suing out an attachment, the court, after .setting out the 5th section of the act of 1837, proceeds: “ The legislature evidently intended, by the enactment of this statute, tomate the wrongful suing out of the process referred to, of itself, a sufficient cause of action, and, in such case, to authorize the defendant to recover for the actual damages sustained; and if the attachment is sued out maliciously as well as wrongfully, to recover vindictive damages, without, in either ease, 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. Tones, 7 Ala. 622; and we are satisfied that the decision was correct.” To this it may be added, that an action on the case is a proper one for enforcing a right to damages given generally by statute, especially where no other adequate remedy is specifically, prescribed by statute. — Autauga County v. Davis, 32 Ala. 703. There cau be no doubt, that after the repeal of the act of 1807, and the enactment of the statute of 1837, the real and only basis for the decision, that an action on the case would lie for the mere wrongful suing out of an attachment, was the 5th section of the last-named act. Indeed, it would be impossible to sustain the cases which assert that such an action would lie, as correct rulings of the law, except by reference to that act Take away that provision in the statute of 1837, and where in the legislation of the State can be found any act, which, upon the most liberal construction, could be held to change, as against plaintiffs in attachment, the well established principle of the common law, that an action on the case will not lie to — 346 — recover damages for tbe mere wrongful resort to legal process ? It will be observed, tbat the act of 1837 did not deprive the defendant in attachment of any rights of action allowed him by the common law. These were, the right to sue on the bond to recover damages for either wrongfully or vexatiously suing out the attachment, and the right to sue in case for the malicious resort to the process. Neither of these rights of action could be enforced at the common law, until the termination of the attachment suit. — Tatum v. Morris, 19 Ala. 302; Hill v. Rushing, 4 Ala. 213 ; Herndon v. Forney, ib. 243 ; Spivey v. McGehee, 21 Ala. 417 ; Garrett v. Logan, 19 Ala. 346. These common law rights of the defendant were by the statute left intact, but new rights were superadded, namely, the right to bring either of the actions authorized by the common-law before the termination of the attachment suit, and the right to bring'an action on the case against the plaintiff for the mere wrongful suing out of the attachment. — Donnell v. Jones, 13 Ala. 501-2. Thus stood the law until the Code was adopted. Having shown that, before the Code, the only authority for an action on the case, for the mere wrongful resort to the process of attachment, was given by the 5th section of the act of 1837, let us now consider whether any provision, similar in effect to. that section, is to be found in the Code. A safe general rule for construing the Code is stated in Ex parte Banks, 28 Ala. 38. “ In the framing of the statutes found in the Code, the legislature must be presumed to have had in view the existing law, and the construction placed upon it by this court. By carrying into the Code a law substantially the same with that which previously existed, the legislature must be intended to have had reference to the construction placed on the old law, and the legislative sanction of it may, therefore, be inferred.” — See, also, Duramus v. Harrison, 26 Ala. 326. It would seem to be a corollary from this proposition, that if the legislature, in codifying the law upon a subject embraced by an old statute, while substantially re-enacting — 347 — some of tbe provisions of tbe former statute, employs in reference to tbe special matter embraced by another one of its provisions words materially variant and expressive of a different purpose, tbe fair conclusion is, that it was not tbe intention to re-enact, but on the contrary to change in this respect, tbe former law. Tbe only sections of tbe Code which relate to the particular matter covered by tbe 5th section of tbe act of 1887, are in tbe following words: “ § 2564. Tbe defendant must not deny or put in issue tbe cause for which tbe attachment issued, but may, at any time within three years of tbe suing out of the attachment, before or after tbe suit is determined, commence suit on tbe attachment bond, and may recover such damages as be has actually sustained, if tbe attachment was wrongfully sued out. “ § 2565. If sued out maliciously, as well as wrongfully, tbe jury may, in addition, give vindictive damages.” Tbe marked difference between tbe language of tbe two sections above quoted, and that employed in the 5th section of tbe act of 1837, will at once strike tbe attention. Tbe latter statute gives a general right to £ recover any damages which tbe defendant may have sustained, or to which be may be entitled’ on account of tbe wrongful or vexatious suing out of tbe attachment, without designating any particular form of action as tbe remedy to be pursued. On tbe other band, nothing can be more obvious than that both of tbe foregoing sections of tbe Code relate to one and tbe same suit, and that is expressly declared to be a suit on tbe bond. In reference to that suit, they give to tbe defendant tbe right to commence it before tire termination of tbe attachment suit, prescribe a statute of limitations which is to govern it, and fix the measure of damages to be recovered. This is tbe clear meaning of tbe words; and when words are plain, there is no room for construction. It would be nothing short of judicial legislation, for us to deduce from this language tbe authority to bring an action on tbe case for the mere wrongful suing out of an attachment. By a rule of the common law, that right was denied to the defendant; and — 348 — a statute is never construed as abolishing a rule of the common law, unless by express words or necessary implication. It is said that courts are bound to uphold the rule of the common law, if that and the statute to be construed may subsist together. — Berley v. Rampacher, 5 Duer, 183 ; Sedg. on Stat. &. Const. Law, 127-9, and authorities cited; Williams v. Potter, 2 Barb. 316; Comm. v. Herrick, 6 Cushing, 465. The common-law right of the defendant to bring an action on the case for maliciously proceeding by attachment is not touched by these sections of the Code, unless it may be that the provision, which prohibits the defendant from putting in issue the cause for which the attachment issued, destroys the reason of the common-law rule which postponed the right of acti.on until the termination of the suit, and that the rule ceases with the reason of it. On this question we intimate no opinion. In like manner, the right of the defendant to an action on the bond, for the wrongful or vexatious suing out of the attachment, belongs to him at common law. The regulation of this right is the purpose of these sections. They give to the defendant the privilege denied him by the common law, of bringing his action before the attachment suit is terminated ; and they limit the period within which it must be brought. The form of the bond required by the Code is altogether different from that prescribed by the act of 1807, and furnishes no such implied authority for an action on the case against the plaintiff, as, we have seen, might be drawn from the peculiar condition of the bond required by this latter act. It may be objected to this construction of the Code, that inasmuch as, in an action on the bond, the Recovery is necessarily limited by the penalty, the result will be, that in many instances the remedy of the party injured by an attachment wrongfully issued, may be inadequate. This is true, and it would be an argument entitled to weight, if the words of the statute were obscure, or of doubtful import: but, where the language is unambigu — 349 — ous, it is a consideration which is properly addressed, not to those who construe, but to those who make the law. It is also said, that if section 2564 has reference alone to actions on the bond, then the last clause of that section, and the whole of section 2565, are simply declaratory of what the law would have been if there had been no statute on the subject. It may well be doubted whether this is true in reference to the provision made in section 2565. But, conceding it to be so, statutes which do not change, but only affirm the principles of the common law, are by means rare ; and it would not be difficult to find in the Code many illustrations of .this fact. Such would be the character of section 2565, if we adopt the construction urged by the counsel for the appellee ; for, if that section applies to actions on the case, it simply asserts what would have been the rule independent of any statute. Our conclusion is,,that in the present state of our laws, an action on the case, or a suit in the nature of an action on the case, does not lie for the suing out of an attachment wrongfully, but without malice. The judgment is reversed, and the cause remanded.