Hayden v. Sample

• Decision Date: 31 July 1846
• Court: Missouri Supreme Court
• Parties: HAYDEN & SMITH v. SAMPLE.

10 Mo. 215

HAYDEN & SMITH

v.SAMPLE.

Supreme Court of Missouri.

July Term, 1846.

APPEAL FROM COOPER CIRCUIT COURT.

HAYDEN & ADAMS, for Appellants.

1st. The demurrers should have been sustained; because, the breaches were too general. It does not appear from any of the breaches that an issue upon the affidavit had been made and tried; although, the damages, if any, would grow mainly out of the trial of that issue; and in fact, the attachment bond does not cover any damages that might arise out of any proceeding-in the suit, such as the trial of the issue referred to. The first breach alleges a judgment that might have been given after a plea to the merits, and surely, a defendant in an attachment would have no right to sue upon the attachment bond after pleading to the merits. The second breach alleges that damages had accrued in consequence of the attachment, but does not state how or on what account they accrued; and the third breach is as general, with the exceptions of the recitals of the affidavit being made; but even this breach does not allege that there was any plea in abatement, and trial had upon the same, which was necessary before the plaintiff could recover according to the 12th section of the Attachment law of 1839.

2nd. The attachment bond sued upon did not extend to any damages arising out of any proceeding in the suit, such as the issue upon the affidavit and the damages consequent upon the trial thereof. Yet the damages assessed mainly had reference to this proceeding. See the condition of the bond--and section 3rd of the statute of 1839, referred to above.

3rd. The appellants were not concluded by the verdict and judgment in the attachment suit, from showing that the affidavit upon which the attachment was sued out was true, and consequently that the defendant (appellee in this court), sustained no damages. It will be recollected, that the parties to this suit are not the same as those in the attachment suit, and upon the breach that damages had been sustained in consequence of the attachment, they would undoubtedly have a right to show that the breach was not true--although there had been judgment upon the demurrers, yet under the statute concerning Penal Bonds, Digest 1835, p. 431, § 7, the truth of the breaches are to be inquired into and passed upon by the jury; and under this statute the appellants had a right to show that the attachment had been properly issued and served. They certainly could not be estopped from doing this by the judgment in the original attachment suit--as they are entire strangers to that judgment. The court cannot judicially see or know that any of the labor or expenses of taking depositions were necessary, or pertinent to the cause, without seeing the issue made, and proofs taken to support it.

LEONARD, for Appellee.

First. The judgment was rightly given against the demurrer. I. The condition of the present bond extends to the expenses, &c., incurred by Sample in the defense of the attachment suit, and is not limited to the damages sustained by the mere seizure of the goods. Act of 13th February, 1839, title Attachment, p. 6, § 3; act of 6th February, 1837, § 1, title Attachment. II. A general breach in the words of the condition is sufficient. 1 Chitty's Pl. 326; 2 Saund. R. 181, b. c; Postmaster-General United States v. Cochran, 2 Johns. R. 414; Hughes v. Smith & Miller, 5 Johns. R. 168; Smith v. Jansen, 8 Johns. R. 111. III. If this however, be otherwise, the count contained a good specific breach in the averments “that Sample's property was seized by virtue of the attachment, and he compelled to expend his money in the defense of the suit, whereby he incurred damages in consequence of the attachment to a specific amount, which the defendants had not and would not pay,” and the demurrer being to the whole count, one good breach is sufficient, The People v. Brush, 6 Wend. 458; Pinckney v. Inhabitants of East Hadden, 2 Saund. 379.

Second. The testimony given by the plaintiff of the proceedings upon the plea in abatement, and his expenses incurred in supporting that plea, was properly received. The objection, on the trial, was the same involved in the demurrer to the count, that these damages were not within the condition of the present bond--and has already been considered.

Third. The depositions taken in the original suit and offered by the present defendants to establish the truth of the attachment affidavit, were properly rejected. The only questions for the jury on this inquest, were the truth of the breaches assigned, and the amount of damages sustained. The rejected depositions were not relevant to these questions, and if relevant, having been taken between other parties, were not competent evidence.

Fourth. The jury were properly directed as to the law of the case. All the instructions, except the fourth, asked by the defendants, involve only the same questions that have already been considered. The answer to this instruction is, that these defendants cannot object that Sample's merchant's license, was applied for before, but not actually issued, until his goods were restored, and then ante-dated, so as to cover the whole time. If, however they may make the objection, it is manifestly no reason for withholding from him the damage he sustained by the loss of the sale of his goods, when the very reason why he had no license, may well have been that by the act of the defendants, he had no goods to sell, and of course needed no license.

Fifth. The damages assessed were warranted by the evidence, and are not excessive.

McBRIDE, J.

This was an action of debt instituted in the Cooper Circuit Court by the State, to the use of Sample, against the defendants, Hayden & Smith, upon their bond, dated May 18, 1842, payable to the State, for $3,927 04. The bond was subject to a condition, which after reciting that Faucett, Peabody & Kelly, were about to institute a suit by attachment in the Howard Circuit Court against Sample, provided that this bond should be void, if the plaintiffs prosecuted their suit with effect and without delay, and paid all damages that should accrue to the defendant or any garnishee, in consequence of the attachment.

The declaration sets out the bond and condition, and assigns breaches, that although suit had been instituted by attachment in the Howard Circuit Court, by Faucett, Kelly & Peabody against Sample, yet, the plaintiffs had not prosecuted their suit with effect and without delay, but had so prosecuted it, that judgment was given therein, dismissing the same; that although damage to the amount of $3,000 had accrued to Sample, in consequence of the attachment, yet Faucett, Kelly & Peaboby had not, and would not pay the same; and that although Faucett, Kelly & Peabody had caused the bond now sued on, with a declaration in debt and affidavit of one C. H. Bent, declaring (among other things) that he had good reason to believe, and did believe, that the debt sued for was contracted out of this State, and that Sample had secretly removed his property to this State, with intent to defraud his creditors, to be filed in the clerk's office of the Howard Circuit Court; and upon this bond, affidavit and declaration, had procured a writ of attachment against the property of Sample, to be issued and delivered to the sheriff of Howard county, and Sample's personal property to the amount of $3,000 to be seized by virtue of the writ, and had so prosecuted that suit the Sample was compelled to, and did lay out $1,000, and incur large liabilities, and spend much time in the defense of the suit, and damage to the amount of $3,000 had in this manner accrued to Sample in consequence of the attachment; yet Faucett, Kelly & Peabody had not, and would not, pay the same.

The defendants demurred to the declaration, and judgment being given upon the demurrer, for the plaintiff, an inquiry into the truth of the breaches, and the amount of damages sustained thereby, was taken before a jury at the September term, 1845, of the Circuit Court. Upon this inquiry, the plaintiff offered in evidence a transcript of the judgment and proceedings in the original attachment suit, from which it appeared, that on the 18th May, 1842, Faucett, Kelly & Peabody, filed in the office of the clerk of the Howard Circuit Court, a declaration in debt, against Sample, on affidavit of C. H. Bent, an agent for the plaintiffs, and the bond now sued on executed by Hayden as principal, and Smith as security. The affidavit stated that the defendant was indebted to the plaintiffs in the sum of $1,963 52, and that the debt was contracted out of the State, and that the defendant had secretly removed his property to this State, with intent to defraud his creditors. Upon the filing of these papers, the clerk issued an attachment to Howard county, against Sample, for the amount sworn to, interest and costs. At the return term, the defendant pleaded that he did not secretly remove his property to this State, with the intent to defraud his creditors; and upon this plea, issue was taken, and after a mis-trial in October, 1842, a verdict was found in December, 1843, for the defendant, upon which he had judgment abating the suit, and for his costs. The defendant objected to so much of this transcript as contained the proceedings upon the issue on the plea in abatement, but the objection was overruled, and the transcript read.

Lewis Criglar testified, that as sheriff of Howard county in 1842, he levied an attachment upon Sample's stock of merchandize, in his store at Fayette, took the key, and closed the store for eight or ten days, when Sample gave Marley and Kring as security for the re-delivery of the goods, and re-opened his store. There were more goods in the store than were necessary to secure the sum directed to be attached, but Sample told witness he intended to give security in a few days, and witness took the whole stock. When the attachment was levied, the store had been opened but a few days, and...