Walcott v. Hendrick

• Decision Date: 01 January 1851
• Citation: 6 Tex. 406
• Parties: WALCOTT v. HENDRICK, ADM'R.
• Court: Texas Supreme Court

6 Tex. 406

WALCOTT

v.HENDRICK, ADM'R.

Supreme Court of Texas.

1851.

Quere as to the construction of the term “discount” in the act of 1840. (Hart. Dig., p. 222.)

The system of Spanish jurisprudence was about being abrogated, and the common law, except pleading, was on the point of being introduced. A plea known to the former system, having defined objects and limits, (the plea of reconvention,) was retained by name. And we are justified in recurring to that system to ascertain its extent, its legitimate object, and the matters which might be therein alleged.

The defendant may plead in reconvention, or by whatever name the plea may be called, all matters necessarily connected with the main action and incident to the same, although it be a claim for “unliquidated or uncertain damages.” But quere whether he can plead a claim for “unliquidated or uncertain damages” which is not connected with or incident to the main action. (Note 74.)

The objection that a multiplicity of issues may be formed so as to distract the jury has some but not controlling force. The judge is authorized to make up issues arising on the pleadings, and submit them for the determination of the jury.

Damages arising from the wrongful suing out of an attachment may be pleaded in reconvention in the same suit in which the attachment issued.

Where the plaintiff obtained an attachment on the ground that the defendant secreted him self so that the ordinary process of the law could not be served upon him, the defendant pleaded in reconvention that he was temporarily absent from Cass county on a visit to his son-in-law in Walker county; that plaintiff well knew defendant's intention to pay said visit long before he started on the same; that the defendant's intention was publicly and notoriously known in Cass county long before he left, and that the plaintiff had ample time to have commenced the suit in the ordinary way after he was informed of defendant's intention, &c.; the proof was sufficient to sustain the allegation that the defendant was on a temporary visit as alleged, and that his intention to make the visit was known in the neighborhood: Held, That it was not necessary that the defendant should have shown that he communicated his intention to visit his son-in-law to the plaintiff; that it was sufficient if it was known in his neighborhood and could have been ascertained upon inquiry.

The amount of damages that may be awarded for wrongfully suing out an attachment depends in a great measure upon the motives of the plaintiff. If these were malicious--if there was no probable cause for the proceeding, and it was instituted to vex and harass the defendant, the damages should be exemplary; but if the motive was an honest desire to secure the payment of a just debt, though there was no sufficient legal cause for the attachment, the damages really sustained should be the measure of redress. The jury must determine upon the evidence as to the motives of the plaintiff and the amount of damages.

Appeal from Cass. The appellant brought suit for six hundred and fifty-one dollars ninety-one cents on account, and interest thereon, and, on affidavit in the usual form that the defendant secreted himself so that the ordinary process of law could not be served upon him, he prayed and obtained a writ of attachment. The bond followed the statutory form, except that it was conditioned to pay such damages as should be adjudged against him for ““unlawfully” instead of “wrongfully” suing out the writ. The defendant at the return term moved to quash the attachment on the ground that there was no sufficient bond executed by said plaintiff in this case, that the bond was not conditioned as the law required, and that it did not sufficiently identify this suit, as being the suit in which the bond was given. The motion was overruled; and defendant in his answer at the succeeding term of the court excepted to the sufficiency of the petition, pleaded a general denial, and averred that at the commencement of the suit he was temporarily absent from Cass county on a visit to Walker county; that the plaintiff well knew defendant's intention to pay said visit long before he started on the same; that the defendant's intention was publicly and notoriously known in Cass county long before he left; that the plaintiff had ample time to have commenced the suit in the ordinary way after he was informed of defendant's intention to make the visit, and before he did leave; and that the plaintiff, well knowing these facts, and that he was not secreting himself to avoid the ordinary process of the law, maliciously, unjustly, and oppressively sued out said attachment, and wrongfully, maliciously, and oppressively caused the sheriff, by virtue of said writ, to seize and attach two negro slaves, the property of the defendant; that the said slaves were detained by the said sheriff for a long space of time, the defendant being deprived of their services and put to great expense for their keeping and boarding; and the defendant averred that his credit and standing in said county was greatly injured, and that he was greatly vexed and harassed in mind by the attachment and seizure of the said slaves. The plaintiff excepted to the plea of the defendant--

1st. That the damages pleaded in reconvention are unknown and uncertain.

2d. That the matters pleaded, if true, would be no defense to the plaintiff's action of debt.

3d. That the defendant is secured by the bond against damages, if any are sustained.

4th. Because neither the intention of the plaintiff nor the wrongs nor pretended injuries suffered by defendant can be inquired into in an action of debt, because they form a distinct and separate cause of action, and are not responsive to the charges of the plaintiff and the cause of action set forth in his petition; and therefore the plaintiff prayed that the said plea be rejected.

The motion to strike out the plea was, if acted upon at all, refused, as evidence was adduced to support the matters averred. At the trial the defendant admitted the correctness of the account sued upon, except the item for interest; and his objection to the admission of evidence in proof of an agreement to pay interest was overruled. Evidence was introduced by the plaintiff to prove that he had sufficient cause to sue out the attachment, and by the defendant to show that his intention to make a visit to the west to see his son-in-law was known; and also to prove the value of the negro's services, &c. The plaintiff excepted to the defendant's evidence in support of his plea of reconvention. In the course of the proceedings the original defendant departed this life, and John Hendrick, his administrator, was made a party. The jury found a verdict for four hundred and thirty-four dollars and fifty-eight cents, and judgment was entered for that amount and for costs, and that execution issue, to be levied on the negroes described in the sheriff's return to the attachment, and that an order for sale of said negroes do issue according to law. A motion by the plaintiff for a new trial was overruled. The plaintiff appealed and assigned the following grounds for the reversal of the judgment:

1. That the court erred in overruling the plaintiff's motion to reject the plea of reconvention.

2. In admitting the evidence objected to by plaintiff.

3. The verdict of the jury was contrary to the evidence.

4. No proof of injury sustained by the defendant from the issue of the said attachment.

5. The damages allowed by the jury were excessive.

6. There was error in receiving evidence to traverse the facts set forth in the plaintiff's affidavit, when there was no evidence of a scienter on his part that the facts were different from those stated in his affidavit.

7. There was error in overruling the motion for a new trial.

S. F. Moseley and M. D. Rogers, for appellant. The court below erred in overruling plaintiff's motion to reject defendant's plea of reconvention for damages done him for the wrongfully suing out the attachment in this cause.

1st. Because the matter pleaded by defendant is not similar in its nature to that of plaintiff's cause of action set forth in his petition. (Hart. Dig., art. 609; 1 Tex. R., 472; 2 Id., 192; Thomas v. Hill, 3 Id.)

2d. Because plaintiff's cause of action is founded upon a certain demand, viz, a debt upon an account admitted to be just and correct by defendant's intestate, (see statement of facts,) and the damages proposed to be pleaded as set-off and in reconvention are uncertain. (Hart. Dig., art. 610; Thomas v. Hill, 3 Tex. R.)

3d. Because the plea of set-off traverses the grounds for the issuance of the attachment, which is forbidden by the policy of the law. (Smith v. Cloud, 1 Tex. R., 611.)

4th. Because the plea is not responsive to the plaintiff's petition and creates a multitude of issues.

5th. Because the statute, which requires plaintiff in attachment to give bond with two approved securities before an attachment can issue, gives to the defendant a legal indemnity for wrongfully suing out the attachment. (See Attachment Statute of 1848.)

6th. Because the matters and things alleged in said plea are pleaded by defendant before it has been ascertained that the attachment has been wrongfully sued out.

II. The court erred in not granting a new trial for the causes assigned in the motion for a new trial. The grounds of which motion are fully sustained by the statement of facts, which statement shows conclusively that the verdict was found contrary to the evidence.

Benners, also for appellant. In addition to the argument and brief filed by appellant, the said appellant respectfully submits to the court that the verdict of the jury does not show a finding for the defendant for damages as pleaded in his plea of reconvention, yet the verdict is for less than the amount claimed and acknowledged to be due. If the jury intended to find damages for defendant the verdict would have shown...