Churchill v. Abraham

22 Ill. 455

Opinion

Catón, C. J.

The attachment bond in this case, is drawn in the precise form required by our statute, and it has never been held that the obligee could not recover the amount of the damages actually sustained by the wrongful suing out of the attachment, until he has brought an action for maliciously suing out the writ and recovered a judgment for the damages sustained, for the malicious act. Our statute intends to afford a remedy to the defendant in attachment, if the attachment is not sustained, although it may have been sued out in good faith, and upon probable cause. If the party could only sue upon the bond after he had recovered a judgment for a malicious attachment, he might sustain the most serious loss by the wrongful act of the plaintiff even where it was not malicious. The plaintiff in attachment cannot excuse himself because he acted in good faith. If he occasions damage by an attachment which he cannot sustain, he and his sureties should and must, be responsible for those damages. Although the wording of the bond as prescribed by the statute, does not express the liability in language as clear as might have been selected, its meaning has béen long and well settled in this State, and we should not, were the language even more doubtful, feel at liberty to disturb it.

Although the goods may have been sold on an execution after they were seized under the attachment, that cannot alter the measure of liability arising by reason of the wrongful suing out of the attachment. The judgment must be affirmed.

Judgment affirmed.