Littlejohn v. Wilcox

2 La. Ann. 620

Opinion

The judgment of the .court was pro-Bounced by

Rost, J,

*

This is an action brought by the plaintiffs, upon an attachment bond, executed by the defendants as principal and surety. They .claim $380 .82, as damages sustained in consequence of the .attachment. The .court below gave judgment in their favor for $95, and they appeajed.

It appears that, iu 1842, Jacob Wilcox instituted a suit against the plaintiffs in the State of Tennessee, uponabi.ll of exchange, and that this suit was finally decided in favor of the defendants by the Supreme ¡Court of that State. In 1845, Jacob Wilcox instituted in this city a sujtby attachment against the plaintiffs on the same bill of exchange, and gaye the bend upon which this action is based. After the .attachment, he often told one of the garnishees, that lie did .not wish .to interfere in .the business of Littlejohn., but that he wanted to try the question. He did not, however, try the question. When the case came on for trial neither he nor his .counsel, attended, and his petition was dismissed.

Suitors who try experiments, without hope .of success, and who do not pro.,secute them, must take the consequences. They .cannot be considered in good faith, and the rule of damages applicable to them is peculiar. We think the su.m allowed by the .court below for the loss on the cotton, not .sufficiently proyed j but we ar,e also of opinion that, under the facts .of the ease, the fees paid by the plaintiffs to their counsel to defend the attachment should have been allowed. The judgment must be amended accordingly.

The objections made by the defendant’s counsel to the introduction .of the .evidence of Wright, Connolly, and jDurant, were properly overruled. It went to •the effect, not to the admissibility of the testimony.

It is therefore ordered that the judgment in this case be .amended, and that •the plaintiffs recover from the defendants in solido., the sum .of $175 7.5, with ¡costs in both courts.

Sjadell, X, having been of counsel, not sit in tins case.»