
    Mills v. Long et al.
    
    
      Action on Detinue Bond.
    
    1. Breach of detinue bond ; wliat fees of counsel not recoverable. —Pees of counsel employed to prosecute an action for breach of condition of bond given by plaintiff in detinue, are not recoverable as part of the damages the defendant may have sustained from the wrongful suit.
    2. Besisiing new trial; when counsel fees recoverable. — An application for a new trial in the original suit is a mere continuation of such suit — necessarily incident thereto — and counsel fees for resistmg'such application are, therefore, recoverable.
    3. statute requiring non-suit; extent of. Term “moneyed demand”; embraces what. — The statute (B C. § 2678) requiring a non-suit against the plaintiff recovering less than fifty dollars unless he makes the prescribed affidavit, extends to every suit on a -“moneyed demand” — which term embraces every demand arising out of contracts, express or implied, which, from their nature, enable the plaintiff to make affidavit that the amount sued for is actually due.
    Appeal from the Circuit Court of Crenshaw.
    Tried before the Hon. John K. HenRí.
    This was an action brought by appellant, J. L. Mills, against appellees, John F. Long and his sureties, on a deti-nue bond executed by appellees in a suit in detinue brought by said Long against appellant. The trial of the detinue suit was had at a previous term of said Circuit Court, which resulted in a verdict for the defendant (Mills) in that suit. The plaintiff in said suit applied, within four months, for a new trial, upon the ground of “fraud, accident or mistake,” which application was refused by the circuit judge. On the trial of this cause the plaintiff (appellee) introduced the record of the . detinue suit, and also the record of the application for a new trial; and there was no objection by defendants. The plaintiff in this suit then undertook to prove the damages he sustained on said application for a new trial, but the court refused to allow such proof and an exception was reserved. The plaintiff was allowed to amend his complaint by adding : “the plaintiff claims by way of special damages twenty dollars as counsel fees for bringing this suit,” and to the complaint so amended the court sustained a demurrer. The defendants moved to set aside the judgment on the ground that “the suit was a “moneyed demand,” and the judgment and verdict were for twenty dollars — an amount less than the jurisdiction of the court and there was no set off,” which motion was granted. The various rulings of the court are now assigned as error.
    John D. Gaedneb, for appellants.
    1. The demurrer to amended complaint should not have been sustained. — See Burton v. Smith, 49 Ala. 293.
    2. Is a detinue bond a moneyed demand ? Is it not for the performance of some act or duty ? On this point I cite Phillips v. Sellars, 42 Ala. 660; Skinner v. Bedell’s Adm’r, 32 Ala. 44; King v. Palmer, 34 Ala. 416.
    Gaaible & Bolling, contra.
    
    The demurrer to the amended complaint was properly sustained; also the objection to evidence of damages by the new trial.. — See Miller v. Gould, 35 Ala. 96; Ferguson et al. v. Barber’s Adm’r, 24 Ala. 402.
   BBICKELL, O. J.

The demurrer to the amended complaint, is founded on the single ground that fees of counsel employed to prosecute an action for a breach of the condition of the bond given by the plaintiff in an action of detinue are not recoverable as part of the damages the defendant may have sustained from the wrongful suit. The condition of the bond is, that if the plaintiff fail in the suit, he will pay the defendant all such costs and damages as he may sustain by the wrongful complaint. Counsel fees, and other costs incurred in defense of the action of detinue, it has been held, are recoverable of the obligors in the bond. Beyond this it has been decided their liability does not extend. — Ferguson v. Barber, 24 Ala. 402. The costs and counsel fees of collateral proceedings which may or may not grow out of th.e action, have not been supposed to fall within the condition. Certainly not the costs of a new and independent suit. It is on this ground that it was held in Ferguson v. Barber, supra, that counsel fees incurred on an appeal to this court were not recoverable in an action on the bond. There was no error in sustaining the demurrer.

2. The court was in error in instructing the jury that the counsel fees for resisting the application for a new trial were not recoverable. It was a mere continuation of the original suit, a proceeding to which it was necessarily incident, and the costs of it are costs sustained by the wrongful complaint.

8. The statute which requires a non-suit to be entered against a plaintiff recovering less than fifty dollars, unless he makes the prescribed affidavit, extends to every suit on a moneyed demand. — R. C. § 2678. This term has been held to embrace all demands arising out of contracts, express or implied, which, from their nature, enable the plaintiff to make affidavit that the amount sued for is actually due. — King v. Palmer, 84 Ala. 416. Within the term, the present demand falls.

For the error pointed out the judgment must be reversed and the cause remanded.  