Fleming v. Bailey

SlMRALL, J. : The judgment of the circuit court of Adams county was affirmed by the high court of errors and appeals at June [135] term, 1867. That judgment of affirmance was subsequently set aside and vacated, on the suggestion that the defendant in error, M. S. Bailey, Ayas deceased at the date of its rendition. It is now submitted to us, having been revived against the administrator. No written opinion was delivered by our predecessors, and we are, therefore, without the benefit of their reasoning. Fleming & Baldwin caused an attachment to be levied on several bales of cotton as the property of Mrs. M. S. Bailey, their debtor, on the affidavit that “ she is about to convert her property into money with intent to place it beyond the reach of her creditors.” The truth of •the affidavit was traversed by plea in abatement. The jury found the issue for the defendant and assessed damages for the wrongful suing out of the attachment. The verdict is complained of as against the testimony, and 'excessive. It appears from the testimony that the attachment was levied on sundry bales of cotton, worth ,at the date of the seizure fifty cents per pound, but which had depreciated in value to thirty or thirty-two cents per pound, when the attachment was dissolved. It is evident that the jury computed the depreciation, and acted on it, as the criterion of damages. The statute, makes it the duty of the jury, if they shall find for the defendant, to assess the damages for wrongfully suing out the attachment. The defendant is entitled to all damages sustained, as the result of the wrongful act. It was in proof, that the agent of Mrs. Bailey had the cotton on the market at Natchez for sale, at the time of the levy by the sheriff. It is quite evident that the wrongful act of the plaintiffs, Fleming & Baldwin, prevented and defeated a sale, and- that a loss accrued to Mrs. Bailey of the difference in the price then, and when the cotton was restored to her on the dissolution of the attachment, and such compensation she ought to have, unless some rule of the law forbids it. . We think the jury, trying the issue of abatement, have as large a scope to consider and estimate the damages, as in a suit on the attachment bond. In Barbour v. Fisk, 30 N. Y. [136] Rep., 160, pending an injunction, certain booms were carried off and sold. The stipulation in the bond was to pay all damages sustained by the defendant by reason of the injunction order. It was held that prima facie the value of the property, was the measure of damages. It was said, if the property had remained specifically the same during litigation, and at its conclusion, had been in the defendant’s reach, the damages would have been such as resulted from a privation of the use, and from any depreciation of value. In Edwards v. Edwards, 31 Ill., 474, a party was restrained by injunction from taking possession of a farm, from March to September; he was not restricted, in a suit on the injunction bond, to proof of the value of the use of the farm for the time, but as legitimate element of damages, ought to have recovered for the loss of the crops of the season, by reason of having been kept out of possession. In Horne v. Belcher et al., 11 La. Annual Rep., 321, pending the sequestration of a note, the makers became insolvent. On suit on the sequestration bond, the plaintiff was allowed for his damages, the amount of the note. The court say, the sequestration had the effect of suspending the collection of the note, and of placing it beyond the reach of commerce, and had this not been done, it is not improbable it would have been paid at maturity. Meshke v. Van Dorn, 16 Wisconsin Rep., 323, was attachment levied on wheat; the plaintiff claimed as part of his damages, the depreciation in the value of the wheat. It was ruled that the measure of damages was the difference in the value of the article from the-time it was taken out of defendants possession, and its value at the time of its re-delivery. There was no error, therefore, in the principle upon which the jury assessed the damages, for the wrongful suing out of this attachment. Without reciting the testimony, we are satisfied that the verdict is supported by the evidence. Nor is there anything in the affidavit of John Fleming and H. M. Baldwin in support of the motion for new trial, which would entitle them to another trial. It is not perceived what [137] influence the omitted statements of the Baileys could or ought to have. The only effect would be to prove that the plaintiffs were not actuated by motives of malice or oppression, but the verdict is not for punitive damages, besides these witnesses were strangers in interest to the cotton, nor, in anywise, as it seems, liable for the debt. If the testimony set out in Baldwin’s affidavit had been before the jury, it could not have changed the result. The real question was the value of the cotton when attached, and when re-delivered. But when this sort of application is made, the party must offer a reason why the witness was not produced on the trial, and must also, if possible, produce the affidavit of the witness, in order that the court may know what the witness will depose, and its materiality. Wherefore we affirm the judgment of the circuit court.