Ferguson v. Baber's Adm'rs , 24 Ala. 402 ( 1854 )

CHILTON, C. J.

The demurrer in this case to the declaration is not set out in the record, and, as every reasonable intendment is in favor of the regularity of the judgment, we must regard it as a general demurrer to the declaration; and so treating it, the court committed no error in overruling it, as it is well settled, that upon a demurrer to the whole declaration, although it may contain bad counts, yet, containing one good one, the demurrer must be overruled. There can be no question as to the sufficiency of the first count; it is in the usual form in debt on the penal part of the bond.

2. The next, and main inquiry, is, as to the admissibility of the evidence of payments made by Baber for attorneys’ fees in defending against the action of detinue in which this bond was given, as also in defending in the Supreme Court after the cause was taken up on writ of error, Scott having proved unsuccessful in both courts.

As to the cost reasonably incurred in the Circuit Court, and the payment of such compensation as was required to obtain the services of competent counsel to make his defence in that court, we entertain no doubt, under our former decisions, that they should have been recovered, and consequently the evidence as to such damage was properly admitted. The employment of counsel to defend is a consequence which naturally or ordinarily results from bringing a suit to assert and maintain a controverted claim; and the fees paid to them, in order to make defence, legitimately constitute a portion of the damage to which the defendant is subjected within the meaning of the condition of the bond, which provides for the payment “ of all costs and damages the defendant may sustain by the wrongful suing out of said writ.” —Seay v. Greenwood, 21 Ala. R. 491, 496. The damages here meant are those which are the natural or ordinary result of such a wrongful suing out of detinue process, and obtaining an order of seizure. The injury to tho defendant in being deprived of the use of his slaves, or the expense and trouble in replevying them by giving bond, the expense incident to defending against tho suit in the employment of counsel, and the ordinary court costs, are all proximate injuries, which the obligors in the bond must be supposed to have had in contemplation when they executed it, as included in their obligation to pay and satisfy.

But with regard to the feos of counsel for defending tho case when taken by writ of error to this court, we find more difficulty. ®

The general rule is, that the liability of sureties will never be extended by implication, but the condition will, in general, bo construed strictly in their favor. The bond before us contemplates tho payment of such damages as may have been occasioned by the wrongful suing out of the writ, if the plaintiffs should fail in this suit. Tho condition is broken immediately upon the plaintiffs’ failure in the suit, if any cost or damage has been sustained by tho defendant, which then remains unpaid.— The suit being thus finally decided, upon payment of all costs and damages which it has occasioned, the sureties have complied with their engagement; and so long as this final adjudication remains in full force, this suit can work no additional damage for which they can be held liable in virtue of their bond- They enter into no covenant that their principal shall not make motions in the court with reference to collateral matters, which may or may not grow out of it, and the defence of which may be attended with cost to the defendant; as, for example, the attempt to set aside the sale of the plaintiff’s land, made under an execution issued on the judgment for cost against the plaintiffs. These are remote and collateral matters, which may or may not arise, and which cannot be fairly presumed to have been in the contemplation of the parties to the obligation, and consequently are not embraced by it. They may often happen, but are not the natural and ordinary consequences from the suing out of the original process. So with respect to suing out a new writ — a writ of error — to revise the proceedings in this court. The costs of this court have never been considered as recoverable against the sureties, in a bond given as indemnity for costs in the court below. Non-residents, for many years past, have been required to give security for cost in the first instance, or their suits were subject to be dismissed ; but there is no instance where such security has been held liable for the costs of this court. Yet the usual form of the obligation was, that the party bound himself as surety for cost in the particular suit on behalf of the plaintiff. This uniform practice is persuasive to show, that the bond is considered as providing indemnity only with respect to the cost and damages which may be occasioned by the suit in the primary court. Besides; although the final judgment in the court below is the subject matter upon which the writ of error is based, the writ of error is in the nature of a new suit, and cannot be said to be the natural or ordinal y result of the first suit, any more than the motion, to which we have alluded, to vacate a sale, or a bill in chancery to vacate the judgment upon some supposed equitable ground. To hold that the bond in this case would embrace the costs of this court, would, we think, be to enlarge the undertaking of the sureties by implication, in violation of the general rulo we have above stated; and if the costs, which are the necessary result of an unfounded allegation of error, be excluded, much more should fees to counsel, which are but consequential, and may or may not be incurred at the option of the defendant, be excluded.

It follows from what we have said, that the court below erred in allowing fees paid to counsel in the Supreme Court to be recovered, as a part of the damage provided against in this bond.

The judgment is consequently reversed, and the cause remanded.