Ponsony v. Debaillon

delivered the opinion of the This action is brought on a bond given ^ t]ic defendants to the petitioner on their sue-ing out a writ of attachment against him. The case was dismissed, it not being one, of which 7 ° 7 l'1<: court before whom it was brought, had ju-I’isdiction. The petition sets out the bond and . . the condition, and assigns several breaches or ° causes damage, by which, it is averred, the plaintifi has sustained injury to the amount qf *239two thousand five hundred dollars, the sum for which the obligation was given.

After setting out these breaches, the petition goes on to state, as another breach of the condition of the bond, “ that the writ of attachment, aforesaid, issued out in manner and form aforesaid, by the said Jean Marie Debaillon as aforesaid,was illegally and wrongfully sued out, with the intention of harassing, oppressing and injuring your petitioner; by reason of all which , . , premises alleged, the petitioner has sustained damage to the amount of five thousand o 7 that by reason of the breaches aforesaid, alleged, and others that will be alleged, if required . , , .... ... , by the court, the said writing, obligatory, has become forfeited, and thereby an action has ac-erued to your petitioner, to demand and have, from the said Jean Marie Debaillon and Charles Garrigues Flaujac, jr. his security, the said sum of two thousand five hundred dol- . . T .. lars, the amount of said writing, obligatory⅜ ’ j ° . and to have and demand from the said Jean Marie Debaillon, the aforesaid sum of five thousand dollars.'’

The petition avers further, that the defendants, though often requested, had refused to pay the amount of the bond so forfeited; and *240that Debaillon had refused to pay the five thou-1 J san(j dollars damage though often required so to do. It concludes with a prayer for judgment against them both, as parties to the writing, and against one of them, Debaillon, for the sum of $5000 damages.

To this petition, the defendants pleaded the general issue, and further averred, that the court where the suit had been instituted, did possess jurisdiction of the case, that the plaintiff’s attorney had admitted it in his answer^ and that if it did not, the error was common to all the parties to the suit. That the plaintiff was intending to defraud minors to whom he had been tutor, and the suit had been instituted against him by attachment, to defeat that purpose.

On these issues the parties went to trial in the court below, and a jury gave a verdict for the plaintiff in the sum of $1000. A motion was made for a new trial, and overruled; and judgment being rendered, in conformity, the defendants appealed.

There are ten bills of exceptions on the record ; the three first were taken by the plaintiff, and an attentive consideration of them has *241satisfied us, the judge below did not err in the ’ J ° opinions to which these exceptions are taken.

From the first bill of exceptions taken on the part of the defendants, it appears, the plaintiff offered in evidence, witnesses for the purpose of proving the situation of the real property and buildings at their seizure (under the writ of attachment) and their situation at the time they were restored to the plaintiff; to which evidence, the defendants, by their counsel, objected, on the ground that no damages had been claimed in the petition for any negligence or misconduct with regard to the real property and buildings whilst under seizure, nor for any deterioration of such properly.” The court, however, was of opinion that the evidence was admissible.

In support of this opinion, it has been firgt contended, that the plaintiff was not under any necessity of setting out the breaches; that the matter should have come by way of defence from the defendants. A reference to the terms of the bond, and a slight consideration of the nature of the case, completely answers this idea* Tbe bond being for the payment of such damages, as the obligee may sustain, and the penal sum mentioned in it being merely to cover *242and secure these damages, it necessarily fol* r a lows, the plaintiff must allege and prove what injury ile has suffered. There is no other mode ;n which the investigation into the right could be carried on without violating first principles. Let us suppose the case, where a breach of the bond occasioned no injury to the plaintiff. The defendant could not be required to prove that no damage had been sustained, for that would be to prove a negative. In the other hypothesis, that damages had been suffered; it is surely not the duty of the person who inflicts them to allege and prove their nature and amount. By the common law of England, at one period of their jurisprudence, it was a consequence of ⅛ technicalities, that, in bonds of this kind, the obligee could, at law, recover the amount of the penalty, and the obligor was driven into equity for relief But by a statute passed in that country in the reign of William III. the plaintiff was obliged to assign breaches, and prove them. In our system, no such rules have ever had existence, and if they ever had, good sense would have long since exploded them.

The plaintiff in this case, with great propriety, did allege in his petition, the several causes why the non-compliance of the defendants with *243the condition of their bond had occasioned him damage; but we look into them in vain for fact, which the court, notwithstanding the opposition of the defendants, permitted him to prove, in relation to the real property. The only thing that we find respecting it, is the averment that it was seized; and this is all the defendants could be expected to come prepared to meet. Pxoof that it was damaged and deteriorated in value, was, therefore, giving evidence of an injury not alleged, and was a violation of the rule that the allegata and proba-ta must correspond.

The second bill of exceptions was taken to a refusal of the judge to admit certain acts offered in evidence, to shew, the plaintiff had, previous to leaving the state, made several fraudulent conveyances of his property; that the security given by him had become insolvent; and that efforts had been made by him to remove his property out of theparish of St. Landry, and, subsequently beyond the jurisdiction of the court. This testimony was objected to on the ground that these facts made no part of the allegations contained in the petition filed in the suit in which the attachment issued, and were not admissible in mitigation of damages.

*244This objection has been very ingeniously argued in this court, but we are unable to yield our assent to it. If, as the argument assumed, the petition had been confined to an allegation of the actual injury sustained by the property of the plaintiff, from the defendant’s breach of the condition of the bond, then, perhaps, the position taken would be tenable. For as the obli-gors, by the terms of the obligation, bound themselves to do a certain act, or pay damages for the non-performance, no matter what might be their motives for making such an agreement, they must abide by the contract they voluntarily entered into. But the petition does not stop with an allegation of injury for the breach of the bond. It alleges, that the principal in it sued out the writ of attachment with a view to harass, oppress, and injure the plaintiff; and that, by reason thereof; damages beyond those mentioned in the penalty had been sustained. When, therefore, a legal process is alleged to have been taken out from bad motives, to enhance the damages, we are clear the defendant has a right to rebut this charge, by shewing they were good.

The third bill of exceptions requires no par-ficular notice; we think the judge did not err in *245the opinion given by him. The declarations of r ® J plaintiff made a part of the res gesta and were properly admitted to go to the jury.

The opinion given by the judge, in relation to the matter which forms the fourth bill of exceptions, is, in our opinion, erroneous, on the principle already laid down in relation to the second. The plaintiff, with a view to show the injury suffered by him, in consequence of the seizure of his property, gave evidence he was obliged to seek refuge in the houses of his friends. The defendant offered to prove that his motives for going there were independent of any cause arising out of the attachment. This was refused; and why, we cannot conjecture. If it was competent for the plaintiff to prove the feet,and under the pleadings we have no doubt it was, it was surely open for the defendant to shew why that fact occurred. If it had a tendency to increase the damages the plaintiff claimed, the defendant had a right to mitigate those damages, by shewing it to be unconnected with the injury for which suit was brought.

The point of law involved in the fifth bill of exceptions, was, in our opinion, correctly decided by the judge a quo.

*246The defendant offered to prove that soon af-r ter the plaintiff’s departure for France, a witness ca^e^ at the house where he had lived, and was informed by a member of his family, J that she did not know where he was gone; and that the w itness communicated this fact to the defendant Debaillon. The plaintiff objected to this proof, because it was hearsay, and that the member of the family ought to be produced. The judge being of the same opinion, his decision, rejecting the testimony; forms the ground of the sixth bill of exceptions

Our attachment law' requires the plaintiff to swear to his belief of facts in relation to the defendant, which must be ascertained, by en-quiries into all the circumstances of his departure—his declarations to others—and by common report. When the correctness of the plaintiff’s proceedings subsequently became a subject of investigation, he had a right to give in evidence all these circumstances ; and all the declarations, either of the defendant or others, from which the belief w as formed, in relation to the removal contemplated, or effected by his debtor, and the motives of that removal The testimony, therefore, offered in this case, should have . been admitted. The *247objection is, that the woman is the best witness J ’ and should have been called; but we think differently. If the evidence offered had been in relation to any fact within that woman’s knowledge, she certainly ought to have been produced, and what she said respecting it would not be the best evidence. But whether she told the truth or not, that which she stated was a circumstance, with others, to go to the jury, to shew under what impressions the plaintiff acted: and of her declarations those who heard her, were as good witnesses as she could be.

The 7th bill of exceptions fhas been abandoned before this court: the opinion stated in it, to be given by the judge, was clearly correct.

It is therefore ordered, adjudged and des creed that the judgment of the district court be annulled, avoided and reversed: and, it is further ordered, adjudged, and decreed, that the cause be remanded for a new trial, with directions to the judge a quo not to admit testimony of the injury done to the real property ; and not to reject evidence such as that stated to have been offered by the defendants *248in the second, fourth, and sixth bills of excep- ’ 7 " tions taken by them, on the trial of this cause, And it is further ordered, adjudged, and de-creet^’ that the appellee pay the costs of this appeal,