State ex rel. Roe v. Thomas

19 Mo. 613

• Court: Supreme Court of Missouri
• Decided: March 15, 1854
• Status: Published

Opinion

Scott, Judge,

delivered the opinion of the court.

This is an action against the surety in the attachment bond. The condition of the bond is, that Samuel Gunn, (the principal, ) should prosecute his action without delay, and with effect, refund all sums of money that might be adjudged to be refunded to the defendant, or found to have been received by the plaintiff and not justly due to him, and pay all damages that might accrue to any defendant or garnishee, by reason of the attachment or any process or proceeding in the suit, or by reason of any judgment or process thereon.

The only question presented by the record is, whether the plaintiff can show that his character and reputation, as a merchant, were injured by reason of the attachment, and that he was compelled to suspend his business in consequence of it.

1. Nothing can be clearer, both on principle and authority, than.the doctrine that the liability of a surety is not to be extended by implication beyond the terms of his contract. 10 Mo. Rep. 566. If the design of the legislature, in prescribing the condition of the bond for an attachment, was to cover such damages as are claimed by the plaintiff, there would have been no necessity for the various specifications which are found in the condition. If all possible damages, proximate and remote, were designed to be covered by the clause giving damages that might accrue by reason of .the attachment, why afterwards insert a clause allowing damages sustained by reason of any judgment or process thereon? This .distribution, or rather specification of the results of an attachment, and the giving damages accruing by reason thereof, shows what damages were in the contemplation of the general assembly, when they allowed for all that might accrue to any defendant, by reason of the attachment. It is worthy of observation, that the defendant and garnishee are mentioned together, as equally likely to suffer from the effects of the writ. If it was the intent to give the defendant damages for the loss, he would not thus have been connected with the garnishee who could sustain no such damage. The law says the clerk shall judge of the sufficiency of the penalty. If injuries to the credit were designed to be covered by the penalty, how could the clerk estimate the sum necessary to compensate them ? By what means would he be enabled to ascertain the amount that would cover such damages ? In this very case, it is said that the damages are greater than the penalty of the bond, and so they would be in every case. The clerk does not know that any such damages will accrue, and cannot inform himself thereof. Even if he was assured that damages would accrue, he could not possibly ascertain thoir extent. In requiring the clerk to judge of the sufficiency of the bond, the law must have designed that he should require a penalty that would cover the natural and proximate consequences arising from attaching property equal in value to the debt sued for, which would be known to the clerk. He would have no other data in fixing tho penalty.

The question here is, not whether the plaintiff is entitled to damages for a malicious attachment against his goods, whereby his credit was injured-and his business suspended, but whether the terms of the bond were designed to cover such damages. Eor a wrongful attachment, a plaintiff may bring his action on the case, and recover damages for the injury sought to be compensated in this action. For a malicious arrest, for a malicious suing out execution, or any other malicious abuse of process, the injured party has his remedy in a special action on the case. The same resort is open to the plaintiff in this suit. The case of Donnel v. Jones, 17 Ala. 689, in which the court held that, in an action for a wrongful attachment, injuries done to the credit of the plaintiff by reason thereof, might be compensated in damages, was not on an attachment bond, as was supposed, but was an action on the case.

The statute was not designed.to give damages beyond the natural and proximate damages resulting from the suing out of an attachment. For injuries to his credit and business, the plaintiff is only entitled to damages, where the motives of the defendant have been vicious ; where his proceedings have been malicious and vexatious. To allow damages for loss of credit to business, in an action on the bond, would be to make the plaintiff responsible in one form of action, when, if it had been brought in another form, he might have interposed a defense which would have protected him. In a suit on the bond, the defense of a probable cause would be unavailing. However upright and innocent his motives, he would be mulcted in the same manner and to the same extent, as though his conduct had been swayed by .the blackest malice. Offut v. Edwards, 9 Rob. Lou. 92.

In the case of Pettit & Owen v. Mercer, 8 B. Mon., the action was on a bond for an attachment, the condition of which was, to pay all damages and costs that might be sustained by the defendant in the suit, by reason of the order for the attachment. There, the court held that the plaintiff was confined in Ms recovery to the costs and expenses incurred by Mm, and such damages as he may have sustained by a deprivation of the use of his property or any injury thereto, or loss or destruction thereof, consequent upon the suing out of the attachment; that he had no right to recover for injuries to his credit, or for the derangement of his business ; that, for such injuries, he had his redress in an action on the case for the wrongful process.

The court which tried this cause, seems to have adopted the foregoing rule as the measure of the damages to bo recovered in an action on an attachment bond. Wo seo no reason to depart from it.

The other judges concurring,

the judgment will be affirmed.