Burton v. Smith

49 Ala. 293

• Court: Supreme Court of Alabama
• Decided: January 15, 1873
• Status: Published

Opinion

B. F. SAFFOLD, J.

— The suit was for damages, on an attachment bond. The attachment was procured on an affidavit alleging that the plaintiff had moneys, property, or effects liable to satisfy his debts, which he fraudulently withheld. The plaintiff was permitted to prove that he “ was a man of large means, and had, at the time the attachment was sued out, a large amount of property about him, and under his control, claiming it openly and notoriously as his own.” This is the first exception. As the issue was the fraudulent withholding of property, how better could the plaintiff disprove the accusation than by showing a large amount of property in his possession, subject to, and sufficient for, the payment of his debts ? The amount, description, value, &c., of his pr9perty, were matters of proper, if not indispensable, inquiry. There was no error in the admission of the testimony.

2. The court also admitted evidence of the value of the plaintiff’s counsel fees in this case, as part of the damages to be recovered. They were specially claimed in the complaint. Such fees, incurred in defending the attachment suit, are recoverable as actual damages, and all damages to the time of trial are recoverable. Seavy v. Greenwood, 21 Ala. 491; Metcalf v. Young, 43 Ala. 643. If the plaintiff is éntitled to damages, and cannot obtain them without suit, the expense of prosecuting it does not seem to stand on worse ground than that attending the attachment suit. Both grow out of the same wrongful act of the defendant, who ought to make full restitution. We see no error in admitting the evidence.

The judgment is affirmed.