Pettit & Owen v. Mercer

• Decision Date: 13 December 1847
• Citation: 47 Ky. 51
• Court: Kentucky Court of Appeals
• Parties: Pettit and Owen <I>vs</I> Mercer.

47 Ky. 51

Pettit and Owen vs Mercer.

Court of Appeals of Kentucky.

December 13, 1847.

APPEAL FROM THE CALDWELL CIRCUIT.

JUDGE SIMPSON delivered the opinion of the Court.

PETTIT brought a suit in chancery, and obtained an attachment against Mercer. The debt, to secure the payment of which the attachment had been sued out, having been arranged after the institution of the suit, it was dismissed by the complainant. This suit is brought on the bond executed by the complainant, upon suing out the attachment, which is conditioned substantially as required by the statute under which the proceeding in chancery was had, for the payment of all costs and damages sustained by the defendant in the suit by reason of the wrongful issuing of the order.

Has the defendant in the chancery suit, a right of action on the bond, in consequence, merely, of the dismissal of the suit by the complainant? The bond is not conditioned for the successful prosecution of the suit, but that the order for the attachment has not been wrongfully obtained. Unless, therefore, the order was procured wrongfully and without just cause, there is no breach of the condition of the bond, and no foundation for any action thereon; although the complainant may have abandoned the prosecution of the suit, after it has been instituted.

In the progress of the trial in the Circuit Court, a question was raised, both in the pleas offered, and instructions asked, in regard to the validity of a defence, based on the fact, that the attachment had been sued out in good faith, and without malice, the defendant having probable cause to believe the truth of the matters charged in his bill, upon which the order for the attachment was procured. The condition of the bond, according to its terms, is violated, if the complainant has obtained the order wrongfully. If the causes alledged did not in fact exist, although he may have believed in their existence, there was no actual foundation for the proceeding, and the act of procuring the order for the attachment was wrongful. To make the breach of the bond depend upon the belief of the complainant, as to the truth of the alledged causes, would be to establish a very uncertain standard by which to determine the right of the injured party to maintain his action. We think the terms of the bond would be more faithfully regarded, and the intention of the Legislature more effectually sustained, by requiring the defendant in making a defence to the action, to establish by proof, the existence of the grounds charged in the bill, and contemplated by the statute as authorizing this mode of proceeding by the creditor.

The extent, however, to which the plaintiff has a right to recover in a suit of this kind, or in other words, his right to damages commensurate to the injury sustained by him in consequence of the suit in chancery and the extraordinary proceeding by attachment, forms the chief subject of inquiry in this case. Has he a right to show that his credit has been seriously affected, his sensibilities wounded, and his business operations materially deranged, in consequence of the attachment having been...