Adam Bros. v. Gomila & Co.

The opinion of the Court was delivered by Todd, J. This is a suit on an attachment bond to recover damages alleged to have been caused by the writ of attachment and charged to have illegally issued. Prom a judgment in favor of plaintiff’s for $1179.57, the defendants have appealed; and the plaintiffs ask in this Court an amendment to the judgment, increasing the amount awarded them by the lower court. The plaintiffs were non-residents, and a ship belonging to them was seized under the writ named. The writ issued and the seizure was made on the 23rd of .October, 1882, and the property released on bond on the 26th same mouth and year. There ivas no rule taken or motion made to dissolve the attachment, but an answer to the merits was filed, the case tried, and the demand of the plaintiff therein rejected,. The contention of the counsel for the obligors in the attachment bond, the defendants in the present suit, is, that only such damages can be allowed in this action as resulted directly from tlie attachment itself; and that all the expenses attending the defense of the previous' suit cannot be recovered, but ouly those relating exclusively to the [480] writ. Hence it is argued with respect to the counsel fees in defending said previous suit, that, inasmuch as the services therefor were rendered in defeating the demand on the merits and were uot specially-directed against the acpomi>anying writ, they cannot form an element of damage in this action ; and that this would apply to all like costs and expenses of the former suit. After due examination of the authorities hearing on this point, we are of opinion that this proposition is correct. We have so recently held in the case of McDaniel vs. Gardner & Co., 34 Ann. 341, and Cretin vs. Levy, not yet reported, and these are supported by previous decisions. See 33 Ann. 6; 5 Ann. 714 j 13 Ann. 440, 214. It is to be noted that in the attachment case, though the defendants were brought into court by a curator ad hoc, they were represented in its defense by attorneys of their own selection, that issue was joined by an answer to the merits, and the services of the attorney were directed not against the attachment by motion or rule, but in resistance to the plaintiff’s demand and to defeat a personal judgment against the defendants. We are referred to the case of Frank & Co. vs. Chaffe & Sons, 34 Ann. 1203, as sustaining a contrary doctrine. The plaintiffs in that case had been decreed the owners of the property attached by Chaffe & Sons, as belonging to one Hyner, their debtor, and were allowed as damages the attorney’s fees paid out in rescuing the property from the seizure under the attachment. The only actual damages we can find as resulting directly from the attachment in this instance and the seizure under it, is the amount paid out as commissions for procuring a release bond, $275, and the fee of the attorney in effecting the release of the property and obtaining and preparing the bond necessary therefor—which we estimate at $50 —making in all $325. Besides the actual damages claimed, there is a demand for exemplary or vindictive damages, the plaintiff in the attachment being charged with having procured said writ through malice and without probable cause. Conceding that there is any authority under our system for the recovery of such damages, we find from attentive examination of the whole record that the evidence is not sufficient to sustain the charge. It does not appear that there was either malice- or want of probable cause in the institution of the attachment proceedings. It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended by reducing- the amount thereof to $325, and as thus amended it be affirmed, appellees to pay costs of appeal.