Mills v. Long

BBICKELL, O. J. The demurrer to the amended complaint, is founded on the single ground that fees of counsel employed to prosecute an action for a breach of the condition of the bond given by the plaintiff in an action of detinue are not recoverable as part of the damages the defendant may have sustained from the wrongful suit. The condition of the bond is, that if the plaintiff fail in the suit, he will pay the defendant all such costs and damages as he may sustain by the wrongful complaint. Counsel fees, and other costs incurred in defense of the action of detinue, it has been held, are recoverable of the obligors in the bond. Beyond this it has been decided their liability does not extend. — Ferguson v. Barber, 24 Ala. 402. The costs and counsel fees of collat [460] eral proceedings which may or may not grow out of th.e action, have not been supposed to fall within the condition. Certainly not the costs of a new and independent suit. It is on this ground that it was held in Ferguson v. Barber, supra, that counsel fees incurred on an appeal to this court were not recoverable in an action on the bond. There was no error in sustaining the demurrer. 2. The court was in error in instructing the jury that the counsel fees for resisting the application for a new trial were not recoverable. It was a mere continuation of the original suit, a proceeding to which it was necessarily incident, and the costs of it are costs sustained by the wrongful complaint. 8. The statute which requires a non-suit to be entered against a plaintiff recovering less than fifty dollars, unless he makes the prescribed affidavit, extends to every suit on a moneyed demand. — R. C. § 2678. This term has been held to embrace all demands arising out of contracts, express or implied, which, from their nature, enable the plaintiff to make affidavit that the amount sued for is actually due. — King v. Palmer, 84 Ala. 416. Within the term, the present demand falls. For the error pointed out the judgment must be reversed and the cause remanded.