Baggett v. Beard

Simrall, J.: Win. S. Baggett and Martha, his wife, sued the defendants in error in the circuit court of Lawrence county, on injunction and sequestration bonds, and assigned sundry breaches. The defendants pleaded nil debit. Plaintiffs moved to strike out the plea, because not responsive to the declaration, which motion the court overruled, and the issue was found by a jury for the defendants, who bring the case here bjr writ of error, and complain of errors : 1st. In not striking out the plea of nil debit. 2d. In refusing to receive testimony of counsel fees paid in the chancery causes. The last assignment involves the question, whether counsel fees and transcripts of papers to be used in the chancery [123] suit can be recovered in suit on tbe bonds or either of them, set out in the declaration. The condition of the sequestration bond is: That the “ obligors or complainants shall pay ‘ all damages ’ which Martha Phillips, (wife of plaintiff in error), may sustain in case it shall, appear that such sequestration was obtained wrongfully, or without sufficient cause.” The condition of the injunction bond was to “ pay all damages and costs ” for suing out the injunction in case the same should be dissolved. The case of Corcoran v. Judson, 24 N. Y. Rep., 107, is like this. The point made in that case was whether counsel fees, paid by the plaintiff, were covered by the words in the condition of the bond, “ costs and dama--' ges,” and the court held that they undoubtedly were. “ The bond,” observed the court, “ was to indemnify the plaintiff for the expenses and damages to which he might be subjected by the proposed contestation.” Sedgwick, in his work on Damages, p. 177, lays the rule down in an action of covenant for breach of warranty, where a former suit has taken place, which the covenantee was obliged to defend, not only his costs, but counsel fees, may be recovered in the suit on the covenant itself. Under the Code of Practice of New York, when the injunction order is made, the court or judge takes from the party a written undertaking, with or without sureties, to the effect that the plaintiff will pay to the party enjoined such “damages” as he may sustain by reason of the injunction, on dissolution of the injunction. It was said by the chancellor, in the case of Edwards v. Bodine, 11 Paige, 224, “ the counsel fees are clearly covered by the terms of the bond.” So, in principle, is the case of Gunter v. Morrison, 31 Barb., 157. In many of the states the point has been adjudged the same Avay. Shultz v. Morrison, 3 Met. Ky. R., 98; Gairett v. Logan, 19 Ala. N. S., 344; McRea v. Brown, 12 La. Ann., 181. The cost of any transcripts, to be used in the defense of the chancery suit and actually so used, are also covered by the condition of the bond, and may be recovered in this suit. The circuit court erred, there [124] fore, in not permitting Baggett and wife, the plaintiffs, to prove the fees paid to counsel for defending the chancery suit, and also the costs of any transcripts of papers used as evidence in that suit, or any costs of suits paid. Nil debit is not a proper plea to this suit. The defendant ought to reply specially his defense. Each breach assigned is in nature of a separate count, disclosing a separate cause of action. The defendants below will be permitted to put in proper issuable pleas, if so advised. Jtidgment Reversed, and cause Remanded for a venire facias.