Hudson v. Young , 25 Ala. 376 ( 1854 )

CHILTON, C. J. —

The declaration avers, that in consequence of the suing out of the writ of detinue, and the seizure of the property sued for, plaintiff was deprived of the use of said property for a long space of time, Ac.; and the court allowed proof to be made of the value of the use of said property per day, over and above the expenses, during the time it was in the possession of Wickham, the plaintiff in the detinue suit.

This was rather a circuitous mode of proving the value of the hire of the property for the time Young was deprived of it, but we are not prepared to say that it was objectionable. The ground of objection taken in the court below is, that the plaintiff was permitted to recover for more than five days’ detention, that being the period within which he could have given bond for the forthcoming of the property to abide the result of the suit; and it is insisted that his failure to give bond, and the execution of such bond by the plaintiff in the detinue suit, in consequence of which the property was delivered over to the latter, makes the subsequent detention of it by the latter but a remote consequence of the suing out of the original process, and that the damage resulting from such deprivation of the use cannot be recovered in an action upon this bond, not being the necessary result of the issue of the writ of detinue.

Damages are of two kinds : — general, that is, such as necessarily result from the injury complained of, being such as may be shown under the ad damnum, or general averment of damage at the end of the declaration, and of which the defendant is presumed to be cognizant and to come prepared to meet; and special, that is, such as are the natural and proximate consequences of the injury alleged, but which are not the necessary result of it. Such damages the law does not imply, neither does it presume the defendant to be cognizant of them; hence, to enable him to come prepared to defend against them, the plaintiff must particularly specify them in his declaration, or he will be permitted to give no evidence at the trial concerning them. — 2 Greenl. Ev. § 224, 3d ed.

In the case before us, the damage caused by the seizure of the property sued for was the proximate, but not the necessary result of the suit. The sheriff was commanded to seize it, and take it into his possession, unless the defendant should give bond. It was in the power of the defendant to have retained it, by stipulating for its forthcoming with security; yet he was not bound to do this, but might remain passive, leaving the complainant to the natural consequences of his own wrongful act, one of which is the deprivation of the use of the property as respects the defendant. The execution of the second bond by the plaintiff in detinue was but the means of obtaining possession of it himself, and furnished security for the return of the corpus in a certain event; but the question of damages for the deprivation of the use of it in the meantime, by the defendant, Young, is neither provided for, nor in anywise affected by this bond. Such damage is covered by the first bond, or is wholly unprovided for by the statute. We have seen it is the natural, though not the necessary result of suing out the writ with the order of seizure endorsed ; and as it is specially averred in the declaration, we entertain no doubt of the correctness of the ruling of the primary court in allowing it. — Zeigler et al. v. David, 23 Ala. 127. There are cases, where the plaintiff is not permitted to recover damages which he allows to accrue by his obstinacy and tortious neglect ; as if A leaves open the gate of B, and B, with a knowledge of tbe fact, passes it frequently, and refuses to close it, and cattle walk through afterwards and commit depredations upon the crop ; here the damage is rather to be regarded the result of B’s obstinacy and neglect, than of the original wrong in leaving the gate open by A. So, when the trespass complained of was the removing of a few rods of fence, it was held, that the proper measure of damages was the cost of repairing it, and not the injury to the subsequent year’s crop, arising from the defect in the fence; it appearing that such defect was known to the plaintiff. — Locker v. Damon, 17 Pick. 284. In this case, according to the facts, the defendant no t only wrongfully caused the property to be taken from Young’s possession, but, following up and consummating the injury, he availed himself of the practice of the court to retain it in his own hands. Such damage naturally results from, and is a proximate consequence of the suit, and properly forms the ground of recovery.

Judgment affirmed,