
    Gray, Macmurdo & Co. v. Lowe & Pattison et al.
    An injunction issued to restrain the negotiation of a bill of exchange, which being dissolved, this - suit for damages was brought on the injunction bond. By the Gowt: The rule of damages would seem to be that the probable loss sustained by a party in consequence of having been deprived of the free disposal of his own property should be the true standard; in other words, he should be placed as nearly as possible in the situation in which lie woukfhave been if the disturbance had not taken place. Consequential or vindictive damages cannot be allowed.
    Plaintiff is entitled to recover lawyer’s fees actually expended by him to obtain the dissolution of the injunction. 1 _
    PPEAL from the Fourth District Court of New Orleans, Beynolds, J.
    
      Elmore & King, for plaintiffs. Goold '& Stanshury, for defendants and appellants.
   Vookhies, J.

This is an action for damages. Gray, Maemurdo & Go. were the holders of a draft of $5000, drawn by Alexander Pattison, Jr., to the order of and endorsed by William, E. Pattison, of the firm of Lowe & Pattison, the drawees and acceptors thereof.' On the 20th of October, 1851, Lowe & Pattison brought suit against William Partee <& Go. and Gray, Macmurdo & Go. to recover the draft, on grounds which are concisely stated in the opinion of our predecessors; (7 An., 465) and to restrain its negotiation, sued out a writ of injunction. On the 26th of November, 1851, Gray, Macmurdo & Go. brought suit on the draft against Lowe & Pattison.

Both' actions were then consolidated, and terminated in a judgment whereby the injunction was dissolved, and Gray, Macmurdo & Go. recovered of Lowe & Pattison the sum of $5254, being the amount of the draft, with damages at five per cent., and the cost of protest, with five per cent, interest from the 14th of November, 1851, until paid. The injunction bond therein given by Lowe & Pattison, with Feao-n, Donegan & Go. as sureties, for the sum of $2000, forms the basis of the present action.

The damages of which the plaintiffs complain are alleged to consist in lawyers’ foes, which they were compelled to pay to have the injunction set aside, and in the trouble, labor and annoyance to which they were subjected in attending to the defence of the case, and also damages which resulted from the inability to negotiate the draft in consequence of the injunction.

The defendants answered separately by pleading the general issue.

The cause was tried by a jury, who found a verdict in favor of the plaintiffs against the defendants for the sum of $2000, the full amount of the bond. After an unsuccessful attempt to obtain a new trial, the latter appealed from a judgment thereon rendered against them.

In cases of this kind, we think the doctrine as to the standard of damages is well settled under our jurisprudence. It is clear that consequential or vindictive damages cannot be allowed. The rule would seem to be that the probable loss sustained by a party in consequence of having been deprived of the free disposal of his own property, should be the true standard; in other words, he should be placed as nearly as possible in the situation in which he would have been if the disturbance had not taken place. 6 L. R., 169 ; 11 R., 146.

It is not pretended by the appellees that they have not realized the full amount of the draft, damages and interest, as awarded by the judgment in their favor. But even if it were, we think their objection on the trial below to the admission of proof of the payment of that judgment, coupled with the other circumstances, would afford a sufficient presumption of Such payment. In Hutchinson v. Sparks, 3 An., 548, it was held that the withholding from the party the evidences of debt upon which he desired to raise money should not induce a more rigorous measure of damages than withholding a like sum of money, and in such case the measure of damages would be interest. On this score it is, therefore, clear that the plaintiffs are not entitled to any damages.

But it is urged that the appellees are entitled to recover as special damages the amount paid by them for professional services rendered in the injunction suit. In the case of Jones v. Doles, 3 An., 388, an action for damages on a sequestration bond, it was held that, in the assessment of damages, the reasonable expense of counsel employed in the former suit was allowable. But we understand the rule to be with the qualification as laid down in the case of Penney v. Taylor, 5 An., 714, which was also an action for damages on a sequestration bond, in which it was held that the plaintiff, who had paid his counsel $250 for their professional services in the suit, was entitled to recover as damages the portion thereof fairly due for the services relating to the release of the vessel from the sequestration. In all cases quoted, in which counsel fees were allowed as damages, such fees appear to' have been for services rendered in relation to the release of the property. It follows, therefore, that the plaintiffs can only recover as damages such amount as they may have expended for professional services relating to the dissolution of the injunction.

The sum of $500 appears to have been paid by them for professional services rendered by Messrs. Elmore & King, in the case of Lowe & Pattison v. Gray, Macmurdo & Co. The record of that case shows that a rule was taken by the counsel to set aside the injunction on the ground of the insufficiency of the affidavit and bond; and the rule was discharged without prejudice to the rights of the parties.

We think, under the circumstance, the sum of $100 would be a just and equitable allowance as damages for the services, relating to the injunction. It is obvious from the evidence that Lowe & Pattison had reasonable grounds to believe that they had a good cause of action, and were not prompted by malice in the institution of their suit against the plaintiff. In the legitimate exercise of their regal rights they cannot be considered in fault, and hence they are not bound to repair all the damage which the,plaintiffs may have sustained thereby. 14 L., 50; 11 ibid, 238.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, that the plaintiffs recover of the defendants, in solido, the sum of one hundred dollars, and that said plaintiffs and appellees pay the costs of this appeal.  