Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-08-23
THE NEWS OF NORFOLK ON TI2EE

first brought an action against the
plaintiff i'll theA attachment. recovered
Judgment. and the attachment platinum
has failed 10 pay 1t. When the statute
provided that the bond should be con-
ditioncd to pay all costs and DAMAGES
which may be awarded against INN
(plaintifD. or sustained by any person
by reason OF the suing out OF the at
'tachmcnt,' without the additional pro-
vision now found in the statute (Codc.
C. los. section % that the bond should
also provide TO pay any claimant OF
any property seized or sold under or by
virtue of said attachment all damages
which he may recover i'll consequence
of such seizure or sale" 1t was heiu
that only the defendant in the attach
mcnt could sue upon the bond. and that
a third party whose property was
wrongly taken had no redress upon the
bond. Davis Y. Com. Is Graf. 139. Then
the Legislature made the addltioh
above quoted That addition is an m
dependent clause. not at all related 10
those made for the benefit of the at
tachment debtor. and we must give TINS
clause u construction and effect Sulta-
bic 10 the condition and wants OF TINS
third party's case. 1t is said lie must
first. ~ an independent suit. recover
dame yes against the party suing OUT
the attachment. before he can sue on
This bond. That would say that In
eases where by law he can recover
HSaiIlSt tHc piaintlt III tlc dA''i. HH.ch.
he must first do so. Why make him
bring two suits when the matter may
as well be tried in an action on the
bond? But what is the injured per-
sons relief in those cases where the
law does not allow him to recover dam
ages from the attachment plaintiff
The plaintiff i'll an attachment. where
there is jurisdiction. is liable TO dam
ages for the officers seizure of Il
strangers property. If he directed such
Ill Ia
suing out the attachment. though with
out sufficient grounds. except he did so
maliciously.-I mean under the common
law. Where. then. is II person whose
property is wrongfully seized by an
officer under an attachment. not in
dress If the construction sought 10 be
put upon this clause OF the bond he
granted? lie cannot sue the officer. as
the Code says that when this bond is
given the officer shall not be sued. He
could ee made to answer at common
law and. as he acts colorc oilcii Thy
color of Office. his bond would afford
redress to the injured third party. if he
could be sued. as he could at common
law. Yet. the obligors in this bond,
having by 1t taken from Henry his
common law action against the sheriff.
leave him none in place of it, if the
bond does not answer.
Where is the sense in driving Il party
to turn around and bring another on
thc,bond To recover just ma; the bond
Supulatcs 20 pay-tO do the same
thing? Convenience and avoidance of
litigation and cost argue for this view.
il benefits both sides. Tho obligors
agreed to this. and they can have full
TRIAL in the action on the bond AS 20
the surety it is better. Tor. though not
Il party to AN independent suit. he
would. without a chance OF defense. be
finally bound by its Judgment
! can safely say that the authorities;
show a decided trend wherever it is;
possible. 10 promote the remedy by dis
pcnsinS with a preliminary suit. and
allowing suit ut once on the bond.
Drake. Attachm. paragraph l66. says:
The question arises whether. in order
to maintain an action on the bond, the
damages must first be recovered in Il
dstincc action. This is not believed to
be requisite and it was so decided in
Virginia. whore the bond is to pay all
such costs and damages as may ac-
ciuc for wronGfully suing out The ut
tachment. Dickinson V. McCraw. /
Rand 15S.' In Smith V. Eakin. >
Snccd. 400, the bond was to pay "all
damages which shall be recovered
against the plaintiff in any suit which
may he brought against him for
wrongfully suing out the attachments"
Preliminary suit was dispensed with
So. in Churchill V. Abraham. 80 ILL.,
i5c, whore the bond was Ito pay all
such costs and damages as shall be
awarded against the plaintiff in any
suit which may be hereafter brought
for wrongfully suing out The attach
mont." l Wade. Attachm. paragraph
.'S. condemns conditions pcsiponing
the injured party's remedy till after he
ms recovered judgment against his
principal adversary as dilatory and
veNatious and requiring a multiplicity
Of actions ito determine questions al
right tina; common sense would declare
ought to he settled In Il single suit e"
He further says that. aS Il general
rule when the statutory form OF bond
is followed. action thereon may be
brought without any preliminary
suit" All this tells us that we ought
/ not. if we can avoid it. give this clause
ihc construction con,ended for. which
would only promote delay. litigation
and cost. ana 'ako from the statute Il
great part Of it's efficacy as Il remedial
statute. For these reasons we affirm
the judgment.