
    Smith v. Bradford.
    Attorneys fees are sometimes allowed as special damages on the dissolution of an injunction* wrongfully sued out, as a punishment for the unjustifiable resort to this as a means of delay to defeat the ends of justice.
    But where an injunction is maintained against hypothecary or executory proceedings on account of a defect in the affidavit and other parts of the proceedings, special damages or lawyer’s fees will' not be allowed. — 4 A. 804.
    Appeal from the court of the third district, for the parish of East Eelioiana, the judge of the distiict presiding.
    
      [264] This is an injunction case. The plaintiff obtained an injunction to restrain an order of seizure and sale which the defendant, Bradford, had taken out and was prosecuting on his mortgage and vendor’s privilege. The plaintiff alleges that the defendant failed to make the necessary legal demand of him as third possessor, and to take the oath required before resorting to the hypothecary action against mortgaged property in his hands as a third possessor. That under these illegal proceedings the sheriff seized and removed the negroes who were engaged in the cultivation of his plantation, in violation of the 660th article of the Code of Practice, thereby causing him great damage. He alleges there is no affidavit that the debt for which the seizure is made is due; or that it was demanded from the original debtor thirty days before coming upon him as third possessor; wherefore he prays that the defendant, Bradford, and the sheriff be perpetually enjoined from any further proceedings upon said order of seizure, and that he have judgment for $5000 in damages.
    Bradford answered separately; admitted the seizure, and justified his course in the proceedings he had instituted; and averred that the injunction was wrongfully sued out, occasioning him much damage. He prayed that it be dissolved with damages and costs; besides $500 special damages.
    Robbins, the sheriff, answered separately, and has. been relieved in part. See 14 La. Rep. 281.
    The district judge, on hearing the evidence, decided that the executoryproceedings instituted by the defendant, Bradford, had been changed into an hypothecary action, and carried on illegally, by which the defendant therein (now plaintiff in injunction) had been much harassed and damaged. Judgment was rendered perpetuating the injunction, and for $500 special damages against the defendant; being the expense of counsel fees in instituting and carrying on the present case. The defendant appealed.
    Andrews, for the plaintiff,
    insisted :
    1. The judgment was correct. The plaintiff was damaged by the wrongful [265] and illegal proceedings of defendant: and he who causes damage to another is bound to indemnify the person suffering or injured.
    2. There can.be no difference between the cases in which an individual illegally sues out an injunction, and where by his illegal proceedings he compels his adversary to resort to one for protection. In the first ease it has been decided that attorney’s fees may make part of the dainages sustained, and there is no reason why they should not be allowed in the latter- The loss and damage to the party is the same. La. Code, 2294; 2 La. Rep. 102; 5 Id. 240; 13 Id. 90.
    The appellant joined issue on a claim for damages, and set up a demand in reconvention for damages and injuries done him, and suffered proof to be offered against him without objection, and introduced evidence himself. It was now too late for him to complain.
    Muse, for the defendant and appellant:
    1. In this case, the plaintiff relies for a reversal of the judgment herein appealed from, upon the following ground,, viz.: That there is no law or authority to compel him to pay the lawyer's fee of his successful adversary, as 
      
      special damages, in a case like the present; nor any other “ expense of the suit,” but the costs of court. No law or authority having been cited or “referred” to by the judge a quo. Neither does the justice of the case authorize such a decree. Keene v. Lizardi & al. 8 La. Bep. 33.
    2. The laws and decisions, of this honorable court relative to injunctions wrongfully obtained to restrain the execution of judgments, Tiamngros is humbly conceived, no sort of application to an executory, process-informally or “ improvidently ” issued.
   Morphy, J.

delivered the opinion of the court.

The plaintiff, a third possessor of mortgaged property, enjoined executory proceedings instituted by defendant, and at the same time claimed damages against him, and against the sheriff] Bobbins, who had made the seizure. [266] The injunction was made perpetual and both defendants decreed to pay damages. Bobbins took up an appeal which was decided in January term, 1840. Bradford, the other defendant, now prosecutes this his separate appeal from said judgment.

We have considered a motion made to dismiss this appeal, but find nothing in it that should prevent us from examining the merits of the Case. The sole ground of complaint, in this court is that defendant was decreed to pay the plaintiff] whose injunction was maintained, the fees of his lawyer, amounting to $S00, as special damages. "We are of opinion that in this the court below erred; it is true that when an injunction is dissolved, the lawyer’s fees of the party against whom it has wrongfully issued have several times been allowed as special damages, under the Act of 1831. ■ This' was thought necessary to carry out the intention of the lawgiver, whose avowed object was to punish with heavy damages the too frequent and unjustifiable resort to a proceeding which had become the daily means of delaying and sometimes defeating the ends of justice; but because such a decision was made, it by no means follows that when an injunction is maintained, damages of this description are to be allowed to the plaintiff in injunction. "Were we, in this instance, to give such damages on account of the supposed analogy between the two cases, we see no reason why we should not be called upon hereafter to alloW'them in every case; for the party enjoining the execution of an order of seizure and sale might be viewed as standing in the position of an' ordinary defendant. After a while the lawyer’s fees of every successful defendant would be claimed as a matter of course, and would become a part of the costs to be paid in every suit. This, we believe, would be contrary not only to law but to sound policy and justice; it would be closing the doors of our courts on a large class of suitors, who would not dare to assert their just rights, lest they should expose themselves to a heavy penalty, in case they should not be able to support their demands by sufficient evidence; or should fail to succeed [267] through some mistake or error on the part of their counsel, as has happened in the very case under consideration. Plaintiff’s injunction was maintained on the ground that the defendant had failed to make the affidavit required by law in all hypothecary actions in relation - to the preliminary demand to be made of his debtor. The taxed costs formerly allowed to the attorney of the successful party having been repealed we know of no law sanctioning the allowance of any thing beyond the ordinary costs of conrt to be paid by the party cast.

It is therefore ordered that the judgment of the district court be reversed ; and proceeding to give such judgment as in our opinion should have been rendered below, it is further ordered, that the injunction he rendered perpetual, and that defendant pay the costs of the court below; those of this appeal to he paid by the plaintiff and appellee.  