Benedict v. Bray

Appeal from the Eleventh Judicial District, El Dorado County.

The respondent filed his complaint against the appellants and D. K. Newell, for that the plaintiff was not, at the time of the defendants bringing suit against him as thereinafter mentioned, nor had he ever been in any manner indebted to the defendants, yet the defendants, well knowing the premises, but intending to injure the plaintiff, &c., at, &c., on the 22d day of August, 1851, filed their complaint against the plaintiff in a certain justice’s Court in said county, declaring that the plaintiff was indebted to them in the sum of $1000; and for the purpose of procuring a writ of attachment against the goods and chattels of the plaintiff, made oath that he was justly indebted to them in that sum; whereupon the said justice issued a writ of attachment against so much of the goods, chattels, and effects of the plaintiff as should be sufficient to satisfy said claim, with damages and costs, directed to the sheriff, or any constable of the county, and placed the same in the hands of one of said officers; who thereupon proceeded to levy upon the property of the plaintiff, and to restrain him from the use of the same; by means whereof the plaintiff was greatly injured in his credit, and lost the benefit and use of said goods and chattels so seized; and further, that at the time of suing out said writ of attachment, the defendants bound themselves by their certain obligation executed to the plaintiff, in the penal sum of $2000, that they would prosecute their said suit against him to effect, and that in the event of failing to do so, the said sum of $2000 should be considered as forfeit; but that the defendants, though a long time had since elapsed, had not prosecuted said suit to effect, but had recently discontinued the same; and that by reason of the premises, the plaintiff had been greatly injured, and forced to expend large sums of money in providing for his defence, &c.; and had sustained damage to the amount of $2000, the amount of said bond; for which sum the plaintiff prayed judgment against the defendants; and also gave notice that one McSpaden had under his control property, &c., of the defendants. A summons was issued and served on the defendants, and also on McSpaden; but the record contains no further notice of the latter.

The defendants filed a joint answer, setting out the circumstances under which the attachment was sued out; averring their belief that the plaintiff was indebted to them for killing their stock, at the time of suing out the attachment; and denying that the plaintiff had sustained any damage, &c. The defendant Newell also filed a separate answer on oath, denying the execution of the bond.

The defendants moved to dismiss the suit on the grounds that the complaint disclosed no cause of action, and that the bond was void. It was admitted that the bond was executed on the 27th of August, 1851, after the attachment issued. The Court overruled the motion; and the defendants excepted. The cause was tried by a jury. From the docket of the justice, it appeared that the summons and attachment against the plaintiff was issued on Saturday, the 23d of August; delivered to the constable on Sunday, the 24th; and that on Monday, the 25th, the attachment was dismissed by order of the plaintiffs in that suit. By the bond, the defendants bound themselves to the plaintiff in the sum of $2000, “ conditioned as follows, to wit: said obligors are bound in the above sum to prosecute the suit now begun, &c., to its legal termination; said suit having been begun on an account for indebtedness from said Benedict to said obligors; or on failure of said prosecution to pay said Benedict all damages resulting from suing out and levying an attachment on the goods and chattels in the above-mentioned suit.” The constable testified that he levied the attachment on Sunday, by seizing the plaintiff’s house and stock, the plaintiff being a butcher ; and that on the same day, he arrested the plaintiff on a warrant for grand larceny, and took him before the same justice; when the plaintiff gave his property in pledge to the justice, in place of bail to answer the criminal charge. The justice placed a man in possession of the property; and on the ensuing Wednesday, informed the man that the attachment was dismissed; but he still held the property as security for the plaintiff’s appearance to answer the criminal charge, which was not disposed of till the ensuing Sunday. Several witnesses estimated the plaintiff’s damage, on account of his property being detained during the week, and the injury to his reputation at $2000. The defendants asked the Court to instruct the jury, 1st. That the bond, being given after the attachment was dismissed, was void. 2d. That when an officer is guilty of trespass in exceeding his authority, the plaintiff in attachment is not liable on the attachment bond unless he participated in the trespass. 3d. That if the jury believe the defendants were not aiding the officer in making the levy, they will find for the defendants. 4th. That from the time of dismissing the attachment, the defendants were released from all damages accruing from the subsequent detention of the property by the officer. 5th. That the plaintiff was entitled to no damages except those resulting immediately from the service of the attachment. The Court refused the instructions; but instead of the fifth, instructed that if the property was not released by the officer at the time the attachment was dismissed by the defendants, they were liable for its subsequent detention by the officer; that they were liable till they redelivered the property to the plaintiff. The Court further instructed, that the plaintiff was not entitled to recover any damages growing out of the criminal proceeding. The jury found in favour of the defendant Newell; and in favour of the plaintiff against the other defendants for $2000 damages; and the Court rendered judgment accordingly, overruling a motion for a new trial. The appellants excepted.