This is a suit for actual and exemplary damages on account of the wrongful and malicious suing out of writs of attachment, and seizure of two stocks of merchandise, etc., thereunder. The charging part of plaintiff's petition is as follows: "Your petitioner, J. D. Boydstun, complaining of J. J. Matthews and J. M. McCormick, represents that the plaintiff resides in the county of Rockwall, and defendant Matthews in Hunt county, and defendant McCormick in Dallas county. Plaintiff alleges: That on December 28, 1890, he was engaged in the mercantile business in the town of Rockwall, in Rockwall county, Texas, and had been so engaged at said place for twenty years next prior thereto, and was doing a large and profitable business at said time and place, and at said date was also engaged in mercantile business in the town of Baird, in Callahan county, Texas. That on said day and date Geo. A. Knight, United States marshal of the Northern district of Texas, acting through his deputies, by virtue of a writ of attachment issued out of the United States circuit court at Dallas, Texas, on the 27th day of December, 1890, in case of Burnham, Hanna, Munger & Co. v. J. D. Boydstun (cause No. 1,351 in said court), seized, attached, and levied on two stocks of merchandise in the town of Rockwall, the property of J. D. Boydstun, the plaintiff herein. One stock of said goods consisted mainly of dry goods, and was of the value of $10,000, and the other stock consisted mainly of groceries, and was of the value of $2,000. That said writ by said officer was also levied on the following described property of plaintiff: One safe and store fixtures, and contents of safe,—warrants or scrip,—to wit, county warrant No. 69, for $3; check No. 16 on First National Bank of Rockwall for $21.50; M., K. & T. time check No. 37, for $14.50; county warrant No. 504, for $12.60
check No. 153, drawn by Wynn, for $79.65. That said safe and fixtures and contents were of the value of $500. All of which property is more accurately described in the return of marshal on said writ of attachment. A true copy of said writ and return is on file with the papers in this suit, and is made a part hereof. That on said 28th day of December, 1890, said United States marshal, through one of his deputies, by virtue of another writ of attachment issued out of said court in same cause, and bearing same date as first writ described, seized and levied and attached a stock of goods belonging to plaintiff at Baird, Texas. That the property taken, seized, and levied on under and by virtue of said writ, from Baird stock, amounted to $2,500 in value, and is fully and accurately described in officer's return indorsed on said writ, a true copy of which is on file with the papers of this suit, and is referred to, and made a part hereof. That said writs commanded the attachment of so much of the property of J. D. Boydstun as would be of value sufficient to make the sum of $3,277.81, and probable costs of this suit. That said writs of attachment in said cause were based on affidavit made by J. H. Alford, who was agent of Burnham, Hanna, Munger & Co., plaintiffs in said cause, and that said agent swore, among other things, in said affidavit, that J. D. Boydstun was about to dispose of his property with intention to defraud his creditors. Said affidavit was made December 27, 1890, and was untrue and false. A true copy of said affidavit is hereto attached, and made part hereof. That said suit in federal court, out of which were attachments issued, was for debt, and a large portion of same had not matured at date of said affidavit. That defendants, J. J. Matthews and J. M. McCormick, were attorneys for Burnham, Hanna, Munger & Co. in said suit in which said writs were issued. That said defendants, Matthews and McCormick, procured, induced, and caused said Alford to make said affidavit so as to obtain said attachment writs and said levies. That defendants and Alford knew at the time and at the date of said affidavit that it was false, and that no ground of attachment existed; and defendants, Matthews and McCormick, knew that plaintiff, Boydstun, was not about to dispose of his property with intent to defraud his creditors, and knew said Boydstun had ample property to pay all debts. That defendants caused and directed said writs to issue, based on said false affidavit, and in order to have them levied on plaintiff's goods as aforesaid, and for the express purpose of having said levies made, signed and executed an indemnity bond to said marshal, and signed said bond as sureties, and delivered same to said marshal prior to said levies aforesaid. A true copy of said bond is on file with the papers in this suit, attached to depositions of Geo. A. Knight, which is referred to and made part hereof. And that defendants, Matthews and McCormick, obtained said writs in Dallas, and by agreement J. M. McCormick accompanied one deputy marshal and writ to Rockwall on Sunday, December 28, 1890, and, in person, directed and caused said Rockwall levies on the two stocks of goods, and safe and contents, etc.; and defendant J. J. Matthews on Sunday, December 28, 1890, went with one of said writs and a deputy marshal to the town of Baird Callahan county, Texas, and, in person, directed said levy above described. That said attachments were sued out and levied negligently, recklessly, and excessively, and maliciously, and without probable cause, and for the purpose and intent of injuring and harassing the plaintiff herein, John D. Boydstun, and of breaking him up in business. Plaintiff denies that he was about to dispose of his property with intent to defraud his creditors. Plaintiff charges that said writs and levies were illegal, because based on said false affidavit, and charges that defendants, when they obtained said writs and signed said indemnity bond, and directed, in person, said levies, knew that said affidavit was false and untrue, and knew that the wrongful levy under said writs would break up said Boydstun in business, and impair his credit; that under said writs, levied as aforesaid at Rockwall, defendants caused the possession of plaintiff's two business houses in Rockwall to be withheld from him for 20 days; that all the goods in each house were seized; that the two houses were the property of plaintiff; that said houses were closed, and the said goods held in them by the said officers, and plaintiff was wrongfully and forcibly dispossessed of said houses for 20 days; that plaintiff's goods at Rockwall and at Baird were held by said officers for 20 days; that they were held by said officers till J. D. Boydstun, plaintiff herein, filed a replevy bond, and the fruits of said levy were claimed by the said Burnham, Hanna, Munger & Co., and by these defendants, and the said federal court suit, after said replevin was prosecuted to judgment by these defendants, as attorneys for Burnham, Hanna, Munger & Co., against J. D. Boydstun and his sureties on replevy bond, and said judgment was collected by these defendants. Plaintiff alleges that at the time of said levies he was a merchant actually engaged in business, in the busy season of the year; that said illegal levy took from him for 20 days over $15,000 worth of his property, not including said two houses, and consisting of goods, money, etc., as above alleged, and that it deprived him of the use and the value of his two houses in Rockwall for 20 days, and during said time plaintiff was thrown out of employment; that his time lost was worth $100; that the use of said houses for said 20 days was of the value of $100; that the interest on the value of the goods, etc., levied on, for 20 days, was $50. Plaintiff alleges that his three said stocks of goods, when levied on, were in good condition, and arranged in shelves and boxes, and were well-kept, retall
stocks of goods, and that, when levied on, said goods were removed from the shelves and from the boxes and places where they were properly kept; that the goods of one house at Rockwall were mixed with goods of another house, and the groceries were mixed with dry goods; that said goods in Rockwall and Baird were so roughly handled during said 20 days that they were greatly damaged, to wit, in the sum of $1,500; that over $100 worth of goods taken at Rockwall, such as lemons, fruits, onions, and potatoes, were perishable, and were damaged and destroyed while illegally held from plaintiff; that the goods at Baird, while held under levy, were roughly handled, and piled up in confusion, and were placed by said officers in a damp room, under a leak, and were greatly injured by said handling and leak; that all this was done by direction of defendants. Plaintiff alleges that the marshal, under direction of defendants, in making said levy at Rockwall, broke open plaintiff's window in one of said houses, and damaged it one dollar, and broke open plaintiff's safe door, and broke safe lock, and damaged it $25, and levied on contents of safe, above enumerated, which were exempt from seizure; that, under direction of defendants, five times as many goods were seized as were necessary to make the debt and costs in said federal court suit; that plaintiff, at the time of said levy, had a good credit, and was engaged in prosperous business, and reasonable to pay all of his debts and to continue his business, and intended to do so, and all these facts were known to defendants; that said reckless, malicious, wrongful, and excessive levy greatly humiliated and distressed plaintiff's mind, and caused him much mental anguish; that plaintiff was closed up during the most valuable season of the year, and was deprived of making his daily...
