Sledge v. Lee

• Decision Date: 31 January 1856
• Docket Number: No. 72.,72.
• Parties: Nathaniel Sledge, plaintiff in error. vs. Joseph A. L. LEE, defendant in error.
• Court: Georgia Supreme Court

19 Ga. 411

Nathaniel Sledge, plaintiff in error. vs. Joseph A. L. LEE, defendant in error.

No. 72.

Supreme Court of the State of Georgia

JANUARY TERM, 1856.

Debt, in Muscogee Superior Court. Tried before Judge Worrill, 19th January, 1856.

This was an action brought by Sledge against Ingoldsby, Bosseau & Halsted, principals, and Joseph A. L. Lee, surety, on an attachment bond, for damages for suing out an attachment. Lee only was served. On the trial, plaintiff offered in evidence the affidavit and bond (made by H. Holt, Attorney for plaintiffs in attachment, and Lee as surety), to which defendants objected, unless Counsel for plaintiff would state he expected to show that there had been a recovery for damages against the principals. It being admitted there was no such recovery, the Court ruled out the evidence, and non-suited the plaintiff. This decision is assigned as error.

Dougherty, for plaintiff in error.

H. Holt, for defendant in error.

By the Court. —Lumpkin, J., delivering the opinion.

The single question in this case is, has the defendant in attachment the right to maintain an action on the bond, without first ascertaining his damages by a suit against the plaintiff in attachment? We hold that he can not.

We fully appreciate the argument, ab inconvenienti, against this conclusion. And concede that in some cases it amounts to a denial of justice; for it is true, that attachments are frequently sued out by non residents and transient persons, whom it would often be difficult and sometimes impracticable, to sue; and therefore, if the language of the Act were doubtful, these considerations would induce us to hold that a previous suit was not necessary.

But the words of the Statute are so plain that we do not feel at liberty to put such a forced construction upon them. The obligors stipulate to pay "all costs which may be recovered by the defendant, in case the plaintiff suing out such attachment shall discontinue or be cast in his suit; and also, all damages which may be recovered against the said plaintiff for suing out the same." (Cobb, 70.)

Can there be any breach of the bond until the damages are ascertained by a recovery against the plaintiff and a failure to collect them? Is not this the condition upon which, alone, the liability of the obligors accrues? And can there be an assignment negativing this condition, until it has been broken? And does not the radical defect in the opposite position, consist in holding that the right to recover depends upon a fact to be ascertained at the end of the suit, when, by the terms of the bond and of the law, it is made to...