
    J. Smith Alexander et al. v. James Jacoby et al.
    1. An action on an undertaking for an attachment given to A. and B. may" be prosecuted in their names, as partners, where it appears that the only injury complained of was the wrongful seizure of property owned by them as partners.
    2. Under the code of civil procedure an action on such undertaking may be-prosecuted by those obligees who have an interest in the damages sought to be recovered, without making other obligees, who have no-interest in the action, parties thereto.
    3. In such action it is not necessary to aver or prove that the attachment has been discharged as to those obligors who are not necessary parties to the action.
    4. The execution of a redelivery bond, under section 199 of the code, by the-defendant in attachment, can not be set up as a bar to his right of action on the attachment undertaking.
    5. In such action the plaintiff may recover damages for interruption to his-business, caused by the wrongful seizure and detention of a stock of goods kept for sale by retail.
    6. Compensation in such eases includes reasonable costs and expenses incurred in procuring the discharge of the attachment and the restoration of attached property.
    7. It is error to admit in evidence the opinions of witnesses as to the amount of loss or damage sustained by depreciation in the market value of a stock of goods, caused by the seizure and detention thereof under an order of attachment.
    8. Damages supposed to result by reason of an injury to the reputation of goods caused by the levy of an attachment thereon, are too vague and uncertain to be capable of legitimate proof, or to form the basis of a recovery in an action on the attachment undertaking.
    Error to the Court of Common Pleas of Clark County;, reserved in the District Court.
    On the 4th day of August, a. d. 1865, J. Smith Alexander commenced, in the Court of Common Pleas of Union county, an action against one "William Diehl and James Jacoby and Jacob S. Newcomb, for the recovery of money. At the commencement of said action the said Alexander made auplication for an order of attachment, and filed.an affidavit alleging that the defendants had disposed of a part, of their goods and chattels with the intent to defraud him,, their creditor. At the same time the said Alexander, with sureties approved by the clerk, executed and filed an undertaking under section 193 of the code, of which the following is a copy :
    “ J. Smith Alexander, Plaintiff' versus “ William Diehl, Jacob S. New-comb and James Jacoby, Defendants. Court of Common Pleas, Union county, Ohio.
    “We bind ourselves to the defendants, William Diehl, Jacob S. Newcomb, and James Jacoby, that the plaintiff, J. Smith Alexander, shall pay to the said defendants the damages, not exceeding $1,600, which they may sustain by reason of the attachment in this action, if the order therefor be wrongfully obtained.
    “ Witness our hand and seal, this 4th day of August, 1865.
    “ J. Smith Alexander, [seal.]
    “John II. Wood, [seal.]
    “ J. A. Henderson.” ' [seal.]
    Thereupon an order of attachment was issued, and merchandise valued at $4,633.47, belonging to Jacoby and Newcomb, who were doing business as partners, was seized by tlfe sheriff. That officer also seized other property which belonged to Diehl. Jacoby and Newcomb after-’ ward gave a redelivery bond, and their goods were returned to them. At February term, A. d. 1866, said action was dismissed as to them, at the costs of Alexander. On the 1st day of March, 1866, they began an action in Clark Common Pleas upon the attachment bond, which action was entitled, “James Jacoby and Jacob S. Newcomb, partners, etc., as Jacoby & Co., plaintiffs, against J. Smith Alexander, J. A. Henderson, and John H. Wood, defendants,” and, stating the foregoing facts, alleged in addition thereto, in their petition, that said order of attachment against them was wrongfully obtained, and that by reason of the premises their business was broken up .and injured, and their credit in the community greatly injured, to their damage in the sum of $3,000. To this petition the-defendants demurred, because—
    1. There is a defect of parties plaintiff in this: that said .action is brought by said James Jacoby and Jacob S. New-comb, as partners, while said undertaking on which said .action is brought, was to them individually, and not as partners.
    2. There is a defect in parties plaintiff in this : that said undertaking is given by the defendants to James Jacoby, J. S. Newcomb, and William Diehl jointly, and the said Diehl should be a party plaintiff to this action.
    3. The said petition does not state facts sufficient to sustain the action against said defendants.
    This demurrer was overruled, exception taken, and the defendants answered, “ admitting the execution of said undertaking, as alleged in said petition, and the bringing of said action and the issuing of said writ of attachment, as alleged in. said petition, and they deny each and all of the other allegations of said petition and say they are untrue.”
    The plaintiffs then filed an amendment to their petition, averring “that by reason of the seizure of their property under said writ of attachment, the plaintiffs were deprived of the use and enjoyment of their store-room and their stock "of goods for about the period of five days; that said goods were greatly injured by reason of their appraisement, and were so imperfectly handled that they became rusted and otherwise greatly injured; that said store-room was kept olosed for the said space of about five days; and many of said goods became thereby injured; that these plaintiffs were engaged in the business of manufacturing tin-ware, and their said business of manufacture was interrupted and their hands kept unemployed, and that said stock of goods, by reason of said attachment and service, and the interruption of said business, was greatly injured in their market value, to the damage of the plaintiffs, as stated in said original petition, and the said plaintiffs further say that they w'ere put to great trouble and expense in the employment of counsel and otherwise, in procuring the discharge of said attachment.”
    The defendants moved to strike out the words “ And the said stock of goods, by reason of said attachment and seizure, and the interruption of said business, was greatly injured in their market value.”
    This motion was overruled, and, on leave, the defendants answered denying the allegations of the amendment to the petition. A verdict having been found for Jacoby & Co. for $1,471.65, Alexander et al. moved for a new trial for the following reasons, among others:
    
      Third. The court erred in receiving the evidence of witnesses, called as experts, to prove that the mere act of levying and seizing upon the goods by the sheriff, on writ of attachment, injured the credit of the goods, and thereby •diminished their market value.
    
      Fourth. The court erred in admitting evidence to prove the value of the use, to the plaintiffs, of said goods while in the hands of the sheriff", and also the damage for the interruption of the plaintiff’s business.
    
      Sixth. The court erred in refusing to charge the jury, that if they found the goods were seized on the writ of attachment as the property of William Diehl.as well as off Jacoby and Newcomb, the discharge of the attachment on demurrer as to Newcomb and Jacoby, would not and did not discharge this property, and the plaintiffs could not recover unless they found the attachment was wrongfully obtained as to all the obligees of the bond.
    
      Seventh. The court erred in charging the jury that they should examine and decide whether the damage for the loss of the use of the property, during the time it was held by the sheriff' and the damage for interrupting their business was the same; and if not the same, to assess such damages as would compensate them for the loss of the use thereof,, and for the interruption of their busines.
    
      Eighth. The court erred in receiving evidence to prove that by the interruption of the business, the plaintiffs would lose jobs and could not resume business, and the loss of the use of the property for the time the goods were held, would not be a full compensation for the interruption.
    
      Ninth. The court erred in charging the jury that it was-for them to find, from the evidence, whether in fact the mere levy and seizure, on attachment by the sheriff, would and did depreciate the market value of the goods, independent of any effect on their condition, or intrinsic value,, and if they should find that it would and did have that effect, that they should allow such damages as such goods-were depreciated in their market value by such levy and seizure.
    
      Tenth. The court erred in charging' the jury that the» plaintiffs were entitled to compensation for the time spent and expenses incurred in procuring the discharge of the attachment on the demurrer, after the redelivery bond was given, as well as before.
    
      Eleventh. The court erred in charging the jury that a. discharge of the attachment on behalf of these plaintiffs-would entitle them to recover, even though the jury should find that as to "William Diehl the attachment was not wrongfully obtained, but as to him was discharged by-agreement and was settled.
    This motion was overruled, and a bill of exceptions, setting out the testimony that had been admitted against the defendants’ objection and the instructions given, as well as those refused by the court, having been taken, judgment was rendered on the verdict.
    The defendants filed a petition in error in the District Court, and the cause was reserved for decision by the Supreme Court. A fuller statement of the questions raised -upon the evidence, and the charge, appears in the opinion-of the court.
    
      
      J. W. Robinson and J. Warren Keifer, for plaintiffs in error:
    Did the Common Pleas err in overruling the demurrer to the petition ?
    The bond must be strictly construed, as parties to it are sureties. They can not be held liable beyond its strict letter.
    It was not given to Jacoby & Co. as partners, and hence-there can'be no liability to them as such.
    The condition of the bond is, to pay all damages which the obligees therein named, in their individual capacity alone,may sustain, and can not be held to extend to injury to a firm constituted of any two, or all of them.
    The bond is joint and not several, and all the obligeesmust be joined as parties, and this even though the separate property of each is attached. Drake on Attachments, sec. 163; Pearce v. Hitchcock, 2 N. Y. 388; Arnold v. Talmadge, 19 Wend. 527; Ehle v. Purdy, 6 Wend. 629; Boyd v. Martin, 10 Ala. 700; 1 Saund. 291, foot note 4.
    In the case of Pearce v. Hitchcock, the bond is held to be-. joint; but by virtue of a statute of New York, authorizing separate suits by the several obligees, each is authorized to-bring an action.
    In Ohio, we have no statute authorizing separate actions to be brought on bonds that are by their terms joint.
    William Diehl, the other obligee on the bond, should have been made a party plaintiff', unless he declined, in-which case he must be made a defendant, and the reason stated in the petition. Code, see. 36. See also Code,, sec. 40.
    That the bond is joint, as a common-law bond, there can be no doubt. Sorsbie v. Park, 12 Mees. & Wels. 146; James v. Emery, 5 Price, 533.
    The petition does not set forth sufficient facts :
    1. Because it .does not allege that the attachment was discharged and determined in favor of all the obligees of the bond, for, without such allegation, no action can be-maintained thereon. Webb v. Pond, 19 Wend. 421; Fisher 
      v. Bristow, 1 Doug. 215; Drake on Attachments, sec. 162, a; Nolle v. Thompson, 3 Met. (Ky.) 121.
    2. Because it appears by the petition of Jacoby & Co., that they, in the attachment suit, voluntarily gave bond, under section 199 of the code, for the redelivery of the property attached, “ to answer the judgment of the court, or pay the said Alexander . . the appraised value thereof.”
    
    
      (a) Giving such a bond, has the effect of admitting that the attachment was rightfully obtained, and the defendants in attachment must then submit to the judgment of the court on the merits of the action.
    The condition of the redelivery bond is, “that the property or its appraised- value in money, shall be forthcoming to answer the judgment of the court in the action.” Code, sec. 199; King v. Snow, 2 Dis. 73-75.
    
      (b) A judgment is the final termination of the rights of the parties in the action. Code, sec. 370.
    
      (c) After a redelivery bond is given, a motion to discharge attached property can not be entertained. The property is discharged by such bond. A motion in attachment is only made to discharge the property attached. Code, sec. 228.
    
      (d) The bond for the forthcoming of the property or its appraised value, renders the attachment functus officio. Austin v. Burgett, 10 Iowa, 302; Jones v. Peasley, 3 Greene, 52; Bank of U. S. v. Patton, 5 How. (Miss.) 200, and authorities there cited; Wanzer v. Barker, 4 How. (Miss.) 363; Brown v. Clark, 4 How. (U. S.) 4.
    
      (e) A successful motion to discharge the property attached, would not discharge the obligors of a redelivery bond. Drake on Attach., sec. 339; Shepherd v. Steele, 43 N. Y. 59.
    (f) It is in analogy to an order of arrest, which can not be vacated after justification of bail. Code, sec. 171; Stewart v. Howard, 15 Barb. 26; Bridg. Paint Man. Co. v. Messmore, 15 How. Prac. 12; Graham’s Prac., 3 ed. (N. Y.) 550; Webb v. Mott, 6 How. Prac. 439; 1 Duer, 645; 3 Sand. 706; O'Neil v. Durkee, 12 How. Prac. 94.
    
      
      Did the court err in admitting and in refusing to rule out incompetent and improper evidence at the trial, and in its charge to the jury on the measure of damages ?
    
    Upon the trial, evidence on behalf of the plaintiffs below was admitted, under objection and exception by defendants below, and which the count afterward refused to rule out on motion, to which refusal exception was'taken.
    Before proceeding to point out the incompetent and improper evidence admitted, and errors in the charge of the court under this head, it may be well to first look to the authorities and get at the true rule in this case, on the measure of damages.
    “ In an action on an attachment bond, natural and proximate damages can be recovered.” Sedg. on Meas. of Dam. (mar.) 550, n. 1.
    “ Remote or speculative damages — such, for instance, as-result from injuries to credit, business, character or feelings— can not be recovered.” Drake on Attach., secs. 174, 175; also secs. 176-183; Alexander v. Hutchison, 9 Ala. 825; Donnell v. Jones, 13 Ala. 490; Pettit v. Mercer, 8 B. Mon. 51; Reidhar v, Berger, 8 B. Mon. 160; State v. Thomas, 19 Mo. 613; Floyd v. Hamilton, 33 Ala. 235; Campbell v. Chamberlain, 10 Iowa, 337; Cox v. Robinson, 2 Rob. (La.) 313; Horn v. Bayard, 11 Rob. (La.) 259; Wilson v. Outlaw, Miner (Ala.) 347; Kirkley v. Jones, 7 Ala. 622; Hayden v. Sample, 10 Mo. 215; Winser v. Orcutt, 11 Paige, 578; Dunning v. Humphrey, 24 Wend. 31; Bruce v. Coleman, 1 Handy, 515, 518; Boyd v. Brown, 17 Pick. 453; Cincinnati v. Fvans, 5 Ohio St. 594, 597, 605.
    In the absence of fraud or malice, only such damages as are the direct and immediate consequences of the act done, are recoverable; while damages by reason of the loss of customers and contingent profits are never allowed. Sedg. on Meas. of Dam. (mar.) 112-115; Cassidy v. Le Fever, 45 N. Y. 562; Masterton v. Mayor of Brooklyn, 7 Hill, 62; Bonadaile v. Brunton, 8 Taunt. 535; Blanchard v. Ely, 21 Wend. 342, and authorities there cited; Driggs v. Dwight, 17 Wend. 71; Thoreau v. Thornhill, 2 W. Black. 10, 78; 
      Hadley v. Baxendale, 26 Eng. Law and Eq. 398; Baldwin v. U. S. Telegraph Co., 45 N. Y. 744; Squire v. W. Union Telegraph Co., 98 Mass. 232; U. S. Telegraph Co. v. Wenger, 55 Penn. St. 262; Dana v. Feidler, 12 N. Y. 40; Hamilton v. McPherson, 28 N. Y. 72; Passinger v. Thorburn, 34 N. Y. 634; Smith v. Coudry, 1 How. 28; Schooner Lively, 1 Gall. 625; Debol v. Arnold, 3 Dall. 333; Anna Maria 2 Wheat. 327; L’Amistad, 5 Wheat. 385; Conrad v. Nicoll, 4 Pet. 291; Conrad v. Pacific Ins. Co., 6 Pet. 262; Bell v. Cunningham, 3 Pet. 85; also, cases collected in a note to 1 Pet. 152, 538; McGregor v. Kilgore, 6 Ohio, 359; Redf. on Carriers secs. 30, 31, 313, and n. 317; Sturgess v. Bissell, 46 N. Y. 462.
    In replevin, in states where property is adjudged to be returned if plaintiff fails, the defendant is only entitled to recover damages “for the decrease in the value of goods since the time of the replevin, with interest on their entire value.” Sedg. on M. Damages (mar.) 499; Rowley v. Gibbs, 14 Johns. 385; Brizsee v. Maybee, 21 Wend. 144. As to the rule in Ohio in replevin, Smith v. McGregor, 10 Ohio St. 461; Smiley v. Dewey, 17 Ohio, 154-156; Crittenden v. Lingle, 14 Ohio St. 182. See also the following cases: Bell v. Bartlett, 7 N. H. 191; Whiting v. Levert, 2 Foster, 10; Messer v. Bailey, 11 Foster, 9; Fisher v. Whoolery, 25 Penn. St. 198; Brewster v. Silliman, 38 N. Y. 423.
    It is only as a mode of estimating punitive or exemplary damages, in actions of tort, accompanied with malice, that loss of profits is allowed to be proved to the jury. Amiable Nancy, 3 Wheat. 546; Ingram v. Lawson, 6 Bing. (N. C.) 212; Gunter v. Astor, 16 Eng. C. L. 357.
    The true rule for the measure of damages on the attachment bond in this case, fairly deducible from the foregoing authorities, and the analogies of the law (provided any are found to be recoverable), and looking alone to the conceded facts of the case, must be based upon the following elements, viz:
    1. Costs and expenses incurred by Jacoby & Co. in obtaining the discharge of the property attached by giving •the redelivery bond.
    
      2. Actual injury to the goods seized, and depreciation, if any, in their market value, by reason of the fluctuation of the general market, of such portion of the goods as would ordinarily have been sold during the suspension of sales.
    3. Loss of the use of the goods seized, during the time they-were held by the officer.
    The loss of the use of the goods will necessarily include the value of the loss of the personal services of Jacoby & Co., and use of building in which the goods were kept for sale; and also any loss that may have been sustained by reason of hands being thrown out of employment.
    All other supposed losses are to be rejected, as not being the natural and proximate consequence of the act of seizing the goods upon attachment by an officer.
    The court erred:
    (a) In permitting the witness to give any opinion as to the value of goods about which he had no actual knowledge.
    
      (b) And in permitting the witness to give his opinion upon the market value of goods in a place, as to which he had no knowledge of the state of the market, the precise -character of the goods, extent of trade, number of customers to purchase the same, or any of the data or elements he himself stated would have to be taken into account in forming an opinion upon the supposed case to which he made answer.
    The cross-examination on this point demonstrates that the witnesses in speaking of the stigma or discredit to the goods by.the mere levy of the attachment, had only reference to the power or ability of the owner to sell the goods, and not to any actual injury to the goods themselves.
    
      (c) The cases put in the supposititious questions were not shown to have been real, and were therefore only calculated to mislead the jury.
    (d) The answer given to the first question involved an improper mode of estimating damages, viz: in taking into account an imaginary stigma and discredit to the goods attached, which are supposed to have affected their market value in the hands of the owner, arising from the mere fact of seizure and levy of an attachment.
    If it were even true that a mere levy of an attachment affected injuriously the market value of goods,it would,in all cases, depend upon the particular circumstances of the levy,, the disposition, etc., of the customers, the extent of the trade, competition in the same, etc.; and could not be proved by a person not acquainted with each and all of these elements, but would have to be proved by a. person, knowing all the-facts, circumstances, etc., from personal and actual knowledge.
    (e) The second question put and the answer thereto was only a mode of. permitting proof of loss of profits to the owner of the goods.
    1. This is clear from the question when fairly analyzed— the per diem sales at retail, the length of time of the interruption, and the season of the year, is given to the witness to enable him to judge of the amount of profits the owner could have made out of the goods.
    2. The answer given shows the witness must have included, in estimating the value of the use of the goods, something more than the profits on per diem sales. The-case put was of a stock of goods of -the market value of $6,000 and per diem sales $125, to which the witness answered; the value of the use would be $75 to $100, and loss from interruption of business $75 to $100 per diem, in all a daily loss of $150 to $200 for value Of use and interruption-of business — an amount from $25 to $75 per day more than the whole amount of sales per diem.
    
    3. In estimating loss from interruption of business, the* same witness makes quite clear the basis of his opinion when be says: “An interruption might very seriously injure the business by the loss of jobs, derangement of trade, which might amount’ to more than all the sales they might have made during the interruption.”
    
    
      4. This testimony was doubly objectionable, as the ivitness had' rió knculedge of loss of jobs, derangement of trade, etc.
    
    5. The court in permitting the witness to give evidence-both of value of use of stock of goods, and damage by reason of interruption of business, allowed for the same injury twice, and for loss of profits, including injury to the-credit of the owner, etc.
    6. Damages from interruption, etc., of business must, necessarily include loss of profits, prospective, as well as-during the interruption.
    7. The depreciation in value of goods attached, is only recoverable on those which would have been sold by defendants in attachment during the time of their detention. Drake on Attach., sec. 179; Reidhar v. Berger, 8 B. Mon. 161.
    The charge of the court (as well as the evidence admitted) included too many elements or modes of estimating-damages, some of which were identical, and if not, in all. cases, improper modes of estimating damages, yet calculated to mislead the jury. These modes were :
    1. Costs and expenses in discharging attachment, including counsel fees, value of time, and expenses of plaintiffs below and preparation of redelivery bond.
    2. Real injury to goods.
    3. Damages resulting from interference xoith and interruption of business, including and taking into consideration the-length of time the house was shut up; deprivation of use of goods and use of building; number of employes thrown out of employment; value of loss of services of plaintiffs below, and loss of regular customers.
    4. Value to plaintiffs below of the loss of their business, etc..
    
    5. Damages from a depreciation of the market value of the goods attached, including depreciation in the value of the goods by reason of “a stigma, blemish, or refutation, arising from the mere seizure and levy of the attachment,” etc.
    The third, fourth, and fifth rules given by the judge forth e recovery of damages, are not only improper and illegal, but each, in different form, repeats the other, and they are-in the main identical.
    1. In the first rule laid down, value of time to plaintiffs. below is allowed, and in the third, value of loss of services, they being, in effect, one and the same thing.
    2. Value of the loss of the use of goods must necessarily comprise all the damages suffered, and includes the use of the building. The latter was indispensable to the use of the goods. And damages for the loss of the use of the goods would also include the profits on “ employes thrown out of employment,’ value of “personal services,” and profits on “ regular customers.”
    
    3. In estimating “ depreciation of market value of goods attached,” under the fifth rule laid down by the judge, “real injury to the goods,” is again included. The witness called to prove damage to goods, arising from their mere levy and seizure, says, “ It would to some extent cause an actual and intrinsic damage to the stock of goods.”
    
    4. Value to plaintiffs below, of the loss of their business during the time it was suspended, is precisely identical, as a mode of estimating damages, with injury arising from interference with and interruption of their business.
    
    5. The third rule laid down by the judge, did not limit damages, to the plaintiffs below, to such as they may have sustained, during the time the goods were in the possession of the sheriff, but authorized the jury to take into account future damages resulting from a general interference with and interruption. of business, by the levy of the attachment and proceedings under it, including loss of “ any regular customers,” “ loss of jobs, and the derangement of the trade,” etc.
    Under this rule the jury no doubt gave effect to the testimony admitted on the trial, that—
    “An interruption might very seriously injure the business by the loss of the jobs and the derangement of the trade, which might amount to more than all the sales . . during the time of the interruption.”
    The marvelous proposition laid down by the judge relative to a stigma or reputation to goods, arising from their mere levy and seizure in attachment, is so purely imaginary, shadowy, uncertain, and speculative as to hardly require much, serious consideration.
    
      As a legal proposition, it is truly novel.
    So far, we have been unable to discover an author who has seen proper to assert or combat such an absurd, vague, and undefinable proposition.
    1. Injury to credit of the owner of attached goods is always rejected in a suit on an attachment bond, for the reason, it is too remote, speculative, etc., and the same reason applies with double force to cases of possible injury to the credit of goods. Drake on Attachments, sec. 175.
    2. The rule is settled that obligees in an attachment bond are only liable for such damages as could reasonably have been contemplated by them. Hadley v. Baxendale, 26 Eng. L. & Eq. 398.
    3. Matters of injury to credit of goods attached, if there are such, not affecting their intrinsic value, are never contemplated by an attaching creditor. The remedy by attachment, always wise and salutary, when resorted to by an honest creditor, would be too dangerous ever to be invoked, if it should be conceded that goods seized under it are' to be ever afterward regarded as blasted in their reputation and their future market value depreciated or destroyed.
    4. In judging of the purely speculative character of this mode of estimating damages, we should not forget that if a merchant had been unfortunate, and especially if those upon whom he'depended for customers believed he had been wrongfully or oppressively dealt with, they would buy his goods with more avidity and scruple less about prices after than before his misfortune. Customers of a hardware merchant are not likely to be controlled by an imaginary notion that bar-iron had lost its market value, for the sole reason that it had been inventoried by a sheriff in an attachment proceeding.
    In this connection may be mentioned the refusal of the court to strike out of the amended petition-, on motion, the words,' viz:
    “ And the said, stock of goods, by reason of said attachment and seizure, and the interruption of said business, was greatly injured in their market value.”
    
      This refusal is also claimed to be erroneous.
    The charge of the court, on the measure of damages,, could not fail to mislead the jury. Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110; White v. Thomas, 12 Ohio St. 312.
    If the court erred in ruling as to a material fact in the-defense, and the bill of exceptions does not show all the evidence, so as to enable the court to ascertain that the defendants were not prejudiced by such ruling, a judgment against the defendants will be reversed. Baldwin v. Bank of Massillon, 1 Ohio St. 140.
    The judge erred in leaving for the jury to determine whether or not the two claims for damages, viz., for .value of the loss of business and for interruption of business, were-identical.
    It was the duty of the court to give the jury the true rule of the law applicable to the facts of the ease, and failing to do so, is a good ground for a new trial.
    The court could not direct the jury to decide what were proper matters to include in their estimate of damages. Hadley v. Baxendale, 26 Eng. L. & Eq. 398; Blake v. Midland R. W. Co., 10 Eng. Com. Law, 457; Alder v. Keightly, 15 M. & W. 117; Robbins v. State, 8 Ohio St. 131.
    This we claim to be true, even though it should be found that the fact of giving the redelivery bond did not have the effect of admitting the attachment was rightfully obtained. Fortman v. Rottier, 8 Ohio St. (548) 553.
    The redress, which a party might rightfully seek after giving a redelivery bond, would be in an action for malicious prosecution against the plaintiff in attachment, and. could under no circumstances be by suit on the bond against him and his securities.
    Mere failure to prosecute a suit, or mere want of-success-on the part of an attaching creditor, does not, per se, give a right of action on the bond. Drake on Attachments, sec. 170; Petit v. Mercer, 8 B. Mon. 51; Smith v. Story, 4 Humph. 169.
    
      The court erred in refusing to charge the jury, “that unless they find the attachment was wrongfully obtained as to all the obligees of the bond, the plaintiffs below could not recover.” ,
    The court erred in refusing to charge that, if the jury find the property attached, was attached as the property of any other person than the plaintiffs below, as the common property of the plaintiffs below and some other person, then, before a recovery could be had, the jury must find that the attachment was discharged and the property released by reason of the attachment having been wrongfully issued, as to all the parties whose property was so attached.
    1. No action will lie on the-bond until the attachment shall have been completely discharged. Nolle v. Thompson, 3 Met. (Ky.) 121; Drake on Attachments, sec. 162, a.
    
    2. If the attachment was dissolved, only as to Jacoby & Newcomb’s interest in the goods, then, still no injury was suffered by them which they can complain of, if the attachment was not wrongfully obtained as to Diehl, the person owning an interest therein.
    The interest óf a partner in partnership property may be attached, and the sheriff is entitled to the exclusive possession of the property until he sells the interest attached.
    A copartner, by giving bond, may retain the possession. Stewart v. Hunter, 1 Handy, 22; Smith and others v. Orser, Sheriff, 42 N. Y. 132, and authorities there cited; Winston v. Ewing, 1 Ala. 129.
    
      Goode & Bowman and Spence & Arthur, for defendants in error:
    I. There is no error in the order of the Court of Common Pleas, overruling the demurrer to the petition.
    1. The suit on the attachment bond was not brought by Jacoby and Newcomb as partners; but by James Jacoby .and J. S. Newcomb individually. The allegation in their petition that when the writ of attachment issued, they “ were engaged as partners, etc., in the business of selling hardware, etc., in the village of Marysville,” was only a de
      
      seriptio personarum. In this suit they sue as individuals, equally interested in the property levied on, and in the business broken up or injured by the attachment procured by Alexander against Jacoby, Newcomb, and Diehl, and their prayer for judgment is by them as individuals.
    But were it otherwise, the first objection raised by the demurrer was not well made. The plaintiffs below constituted the firm of Jacoby & Co. at the time the attachment was issued, and owned the property and carried on the-business injured by the wrongful issue of the attachment.. The plaintiffs in error could not, by the execution of a bond to the individual members of the firm, whose property and business they injured, escape liability for the damage done to the firm property and business. It was the property of the firm of" Jacoby & Co. that was attached in the cause,, and it was for injuries to that firm, property, and business that this suit was brought.
    The court will look to the substantive allegations of the petition, and not regard mere matters of form or description.
    2. The second objection made by the demurrer is equally groundless.
    Generally, in a suit for damages on an attachment bond, all the obligees of the bond must be joined as plaintiffs; and it has been said that this is so even where the attachment is levied on the separate property of each, in which the obligees have not a joint interest. Drake on Attachments, sec. 163; Boyd v. Martin, 10 Ala. 700.
    But this can only be the rule when the property of each obligee has been attached, and where the attachment as to each has been discharged, either by motion or final judgment in the case, and-where each has been injured by the wrongful issue of the attachment. Any other view of the question leads to endless difficulty and absurdity.
    Under our code, section 26, “every action must be prosecuted in the name of the real party in interest.” If the mere naming of several persons as obligees, without any express words as to the joint or several character of the bond, makes it necessary to join all the obligees as plaintiffs in a suit on the bond for injuries which were sustained by only one of the obligees, then you have an action in which not “the real party in interest” is plaintiff, but where you must join with the party injured a person having no interest whatever in the subject of the controversy. Surely our code contemplates no such useless requirement, whatever may be the rule in Alabama.
    But the bond on which this suit was brought is no.t joint as to its obligees. The mere words of the instrument do. not fix its character. Its object is to indemnify the obligees against injury by the wrongful issue of an attachment. If the suit in which the attachment is issued be on a joint liability against all the defendants, and the property taken be the joint property of all the defendants, or in which they have a joint interest, the bond would then be held to be a joint bond. All the obligees would have a joint interest under it, and they would, therefore, all be necessary parties plaintiff in a suit on the bond. But where the suit in which the attachment is obtained is not on a joint liability of all the defendants, and the separate property of each defendant is levied on by attachment, then the interest of th.e defendants in the bond is several, and consequently the bond is several.
    
    
      . And this is precisely what determines the character of the obligation. If it appears from the instrument that the interest of the obligees is several, they may sue in separate actions. For the interest of the obligees being several, the right to be asserted by action is consequently several. And this is so even when the bond on its face appears to be joint only. Gould’s Pl., sec. 59; James v. Emery, 5 Price, 533; 2 Burr. 1190; 1 Parsons’ Contracts, 18, 20.
    Applying these principles to the case at bar, there can be no doubt as to the correctness of the ruling of the court below on the demurrer.
    The attachment was levied on the separate property of Jacoby and Newcomb, in which Diehl had no interest whatever. The attachment, as to them, was subsequently discharged by order of the court. This is conclusive evidence of the wrongful issue of the attachment as to them. Drake on Attach., sec. 173.
    They then became entitled to recover for the injuries they sustained as the natural and proximate result of the wrongful issue of the attachment as to them. The property attached was theirs; the injury done to their property and business was sustained by them alone. Diehl had no interest in that property, and suffered no loss by their injury. He was not, therefore, interested in the damages to be recovered.
    The injured parties do not claim that the attachment suit was maliciously prosecuted against them. They have, therefore, but one remedy for their injuries, and that is a suit on the bond.
    On this they may recover, even though the attachment was procured in good faith. Drake on Attach., sec. 174.
    Their damages need not be ascertained before suit on the bond. 1 Handy, 515.
    But suit on the bond will not lie until the attachment has been dissolved. 3 Met. (Ky.) 121.
    If, then, Diehl must be joined as plaintiff with Jacoby And Newcomb, because the bond was given to these three, we have a ease where great injury has been done by the wrongful issue of an attachment, and yet no remedy is found in the law for the injured parties.
    If all the obligees of the bond must join as plaintiffs, the Attachment against all must be dissolved before they can bring their suit. And if it happen that a creditor has a good ground for an attachment against one, he may couple with that one other persons against whom he has neither ground for attachment nor cause of action, and attach the separate property of each with perfect impunity. He runs no risk of an action for damages, so long as he holds the Attachment as to one, no matter how wrongful may be his Attachment of the property of the others, or how greatly they may be injured thereby. In short, it is in the power -of the plaintiff in attachment to punish the innocent for the fault of the guilty. Such is not the law. 1 Parsons on Contracts, 11; vide also notes to same; Rutledge v. Corbin, 10 Ohio St. 478.
    Under the third ground of demnrrer to the petition by the plaintiffs in error, it is urged that “it appears by the petition of Jacoby & Co., that they, in the attachment suit, voluntarily gave bond, under section 199 of the code, for the redelivery of the property attached to answer the judgment of the court, or pay the said Alexander the appraised value thereof.”
    While this question has not been directly decided in Ohio, yet we think the law on the subject is correctly stated by this court in the case of Fortman v. Rottier and Hoenig, 8 Ohio St. 553. The reason and the rule there intimated by Judge Scott are in full harmony with the justice and good sense of the case.
    No question of the wrongfulness of the attachment is decided by the execution of a redelivery bond. The bond is taken by the sheriff: The court has nothing to do with the transaction. No decision of the rights of the parties on the attachment is made; and the defendant may afterward move to discharge the attachment, and require the court to -determine by adjudication whether the writ of attachment was rightfully or wrongfully obtained. Fortman v. Rottier and Hoenig, 8 Ohio St. 553; Rutledge v. Corbin, 10 Ohio St. 478.
    II. There is no error in the admission of testimony by the Court of Common Pleas, or in the refusal of said court to rule out evidence on the motion of defendants below, as is claimed by the fourth and fifth assignments of error.
    1. Because the fact sought by the first question was the depreciation in the market value of the goods attached caused by seizure, handling, and detention of the sheriff" under the writ of attachment.
    The value of the goods when attached had already been fixed by the appraisement and by other witnesses. Then, one way of proving their-depreciation in market value by the seizure, detention, etc., of the sheriff, was to prove their market value at the time they were returned to the owners. The difference between the appraised market value (if the appraisement showed the true market value when they were seized) and the market value of the goods when they were returned to the owners would be the depreciation in market value. This method was adopted, in the question quoted, by the plaintiffs below; and the question was rightly understood by the witness. He did not answer what the market value was, but said the depreciation in value caused by such a seizure, detention, etc., would be from ten to twenty-three per cent, of the stock. This answer was responsive to the question put, as it would be to-the direct question, “ What would be the depreciation in market value under such circumstances?'’ If the witness Included in his estimate of the amount of depreciation elements not proper to be considered, under a correct rule on the measure of damages, those elements were separated by him and estimated in his cross-examination by the defendants below, and the court, or jury could have no difficulty in sifting the grain from the chaff — the competent from the incompetent. But all the elements included by the witness were proper to be considered, as we shall more fully show in our consideration of the measure of damages.
    The same may be said of the second question quoted, and the answer thereto, except that the second question seeks the value of the use of the goods to the retail merchant owning them during the time they were detained by the sheriff under said attachment; 'and of the question as to the effect' of the mere interruption of the business during that time, on the market value of the goods — providing damages are recoverable for these things.
    It was not necessary that the witness should be acquainted" with or have actual knowledge of the particular stock of goods seized by the sheriff', or that he should know the market value of the goods at that particular place, to qualify Rim as a witness. It was sufficient if he was acquainted-with such goods and business as those of the plaintiffs below, and knew the market value of such things in the vicinity.
    
      The witness is not always required to testify only to facts within his own knowledge. And on questions of science, skill, or trade, or others of the like kind, persons of skill may not only testify to facts, but they are permitted to give their opinions in evidence. 1 Greenl. on Ev., sec. 440.
    These persons of skill are often called experts; but what is an expert but a “ person instructed by experience.” All persons are supposed to have such knowledge and experience as to entitle their opinions to be weighed by the jury in such cases as these. 1 Greenl. on Ev., sec. 440a.
    In testifying to the value of property belonging to a particular trade, a person engaged in that trade need not see the property, as to the value of which he testifies. Alfonso v. United States, 2 Story, 421; Brady v. Brady, 8 Allen, 101; 1 Greenl. on Ev, sec. 440a; 35 Barb. 115; 42 Barb. 36; 13 Gray, 354; 7 Allen, 313; 10 Ib. 59; 101 Mass. 173; 2 Ohio St, 452; Crowell v. W. B. Bank, 3 Ib. 111; 43 Penn. St. 495; 1 Oregon, 92; 36 Barb. 644; 9 Cal. 56; 41 Maine, 177; 37 N. H. 23.
    The witness was shown to be an expert. He had been for ten years engaged in identically the same trade as Jacoby and Newcomb were in when their goods were attached. He knew the value of such goods, and the effect of a stoppage of the trade and handling of the goods by the sheriff under a writ of attachment. He had had experience in that respect, as well as in carrying on the trade. He knew also the value of the use of such a business and stock of goods to the owners, and the loss that would necessarily follow the interruption of the business by an attachment. The trade was peculiar; such as comparatively few men engage in. The value of such a trade and goods is no more within the common knowledge and experience of ordinary men than that of a drug store, bank, or any other peculiar branch of trade in which only a few men engage and possess skill.
    2. If all the elements which entered into the answers of the witness were not proved in the case, that would only affect the weight of the evidence before the jury; it would not render it incompetent. It would be a defect in the quantity, not the quality of the evidence.
    The testimony is competent to prove that there was some injury to the goods, even if it fail to show the extent of the injury. The testimony of the witness shows, among other things, that such a seizure, etc., would cause an actual or intrinsic injury to the goods, and that their market value would thus be diminished. It was competent for the plaintiffs below to prove this, and then show by other witnesses the extent of this kind of injury, and its effect on the market value of the goods.
    There is nothing in the record showing that such other evidence was not offered. There may have been, for all the record shows, and in fact was, testimony in the case tending to prove that the market value of the articles in question was the same in Springfield as in Marysville; that the town of Marysville is in the vicinity of Springfield; and that the acts complained of would have the same effect in both places. The record does not purport to, and does not in fact, set forth all the testimony in the case.
    This court will not presume errors against the Court of Common Pleas. On the contrary, it will presume that the needed evidence was supplied to render that competent which, under any circumstances, would be competent in the case.
    In support of the competency of the evidence and the charge of the court touching the measure of damages, we submit: “That a party injured is entitled to recover all his damages, including gains prevented as well as losses sustained; and that this rule is subject to but two conditions, which are: the damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract — that is, must be such as might naturally be-expected to follow its violation; and that they must be certain both in their- nature and in respect to the cause from which they proceed.” Doolittle v. McCullough, 12 Ohio St. 361; Griffin v. Colver, 16 N. Y. 495; Messmore v. Shot and Lead Co., 40 N. Y. 427; Hadley 
      v. Baxendale, 26 Eng. L. & Eq. 368; Cincinnati v. Evans, 5 Ohio St. 594; Rhodes v. Baird, 16 Ib. 581; Allison v. Chandler, 7 Cooley, (Mich.) 543, and cases there cited.
    Now, we submit that the evidence offered and the charge given to the jury by the court, does not come within either of the objections to the rule, that a party injured is entitled to recover all his damages. It was within the contemplation of the parties, at the time they entered into the undertaking, that the goods of the plaintiff were to be seized, inventoried, handled, and appraised; his store-room closed and his business interrupted ; and it can not be fairly supposed that they did not contemplate deterioration in the market value of the stock of goods to be seized, from all causes which could operate so to deteriorate them. This is the ordinary and probable result of the act,-the damages resulting from which the defendants agreed to pay. If it is-true that the seizure in attachment, with its incidental handling, creates a prejudice against the goods, from the-apprehension that they are injured more than they really are, in the process of being attached, or from any other-cause, it can not be said that it is an injury not within the contemplation of the parties, for it is the very injury for which the parties in the undertaking covenant, to compensate.-
    It can not be said not to be the proximate consequence, for it is the immediate and direct result of the seizure in attachment, with its accompanying legal requirements. It is not “gains prevented,” but actual losses sustained, which the plaintiffs, by this testimony, sought to recover. Is it, therefore, to be rejected because it is uncertain and speculative? We shall endeavor to answer this inquiry, and show that the rule which excludes speculative profits has-no application here, in the next proposition we submit.
    II. The standard which the law adopts in measuring-values for the purpose of ascertaining damages, is the marketable, and not the intrinsic value of property. The fluctuations in market price do not affect the real worth of articles. For instance, the amount of sustenance which. can be derived from a barrel of flour remains the same, whether its market value rises or falls. The capacity of a house for shelter and comfort is entirely unaffected by a change in its market price. Nor do intrinsic and market value necessarily bear any relation to each other. The former is fixed by the inflexible and unchangeable laws of nature; the latter is wholly under the control of public whim or prejudice. Into the causes which affect and control market values, the law does not inquire. It deals with it entirely as a fact, for the reason that, independently of the cause, it wholly controls the amount of money into which the given commodity can be converted at a given time. For instance, the vendor of wheat, to be delivered on a stipulated day, would seek in vain to reduce the damages for non-delivery, by showing that the price of wheat upon that day to have been but the temporary result of a speculative movement, or a false telegram as to the supplies of other markets. It is sufficient for the law that it could have been converted on the day of delivery into & given sum of money. This fact fixes the rights of the parties.
    III. In many cases of injury to goods, the measure of the injury is ascertained by a public sale, and the difference between the market value of uninjured goods of like kind and the price realized for the injured goods measures the recovery. In this class of cases the owner of the goods gets the full benefit of the principle upon which the evidence and charge of the court in this case proceed.
    He is relieved of the necessity of proving that there is a loss of market value over and above the amount of the intrinsic damage, and a public prejudice against goods which have been exposed to injury, which operates as an additional cause to depreciate them in the market, by bringing their influences to operate on them through a public sale, and thus realizes full'indemnity against his loss. Collard v. Southeastern R. R. Co., 7 Hurl. & Nor. 79; McGregor v. Kilgour, 6 Ohio, 363; Simmons v. S. E. R. R. Co., 7 Hurl. & Nor. 1002; Drake on Attachment, sec. 179.
    The public know that when a stock of goods is attached, the law requires them to be handled and appraised, and that the goods, while under attachment, remain in the custody of the sheriff. In those classes of goods which require careful handling, in order to prevent injury, and where injury does actually occur, how is the owner to be compensated for his loss? If, over and above the intrinsic injury, there is a further loss arising out of the prejudice which exists against goods which have been exposed to injury which still further depreciates their market value, is the loss any the less real to the owner ?
    It is, we submit, simply a question of fact, and this court can not be asked to review it, or the finding of the jury upon it, without all the testimony. Neither the evidence offered in the case by the respective parties, nor that upon, the motion for a new trial, being set out in the record, it is not deemed necessary to argue the other questions made.
    
      J. W. Robinson, in reply, cited 8 Ben Monroe, 51, 160.
   McIlvaine, J.

1. An action on an undertaking for an attachment conditioned “to pay the defendants (in attachment suit) the damages which they may sustain by reason of the attachment, if the order therefor be wrongfully obtained,” where the only injury complained of resulted from the wrongful seizure of property owned by the obligees as partners, may be prosecuted in the names of the obligees as partners.

2. Where an attachment undertaking is executed, under the provisions of the civil code, to two or more persons conditioned “ to pay to them the damages which they may sustain,” etc., and the order of attachment be wrongfully obtained as against some of the obligees only, a right of action on the undertaking accrues to those obligees as against whom the order was wrongfully obtained and who were injured thereby; and in an action thereon by the injured parties, it is not necessary that those obligees, as against whom the order of attachment was rightfully obtained, should be joined either as plaintiffs or defendants.

In determining whether the right of action on such undertaking be several or joint only, not only the terms of the bond, but also the provisions of the statute which authorize its execution must be considered, for such provisions must be regarded as much a part of the bond as if they were embodied in its terms.

The undertaking is executed to any or all of the defendants in the action, at the option of the plaintiff, and not by the consent of the obligees. The order of attachment may "be levied upon the separate property of the defendants as-well as upon their joint property. It may be dismissed as to some and enforced against other defendants, and on the final trial of the action, judgment maybe given for some and against others. It seems to us, therefore, that as the injury, against which the undertaking was intended to indemnify, may be several as well as joint, that the right of action thereon must also be several as well as joint. And as the general rule of the code is, that “every action must "be prosecuted in the name of the real party in interest,” we are of opinion that in actions on such undertakings, those obligees, and only those, who have an interest in the damages sought to be recovered, must be joined as plaintiffs or made parties to the suit.

3. If the foregoing conclusion be correct, it follows'that in an action on such undertaking by those obligees who-Rave an interest in the damages sought to be recovered, it is not necessary to aver or prove that the attachment had been discharged as against other obligees who have no interest therein and who are not necessary parties to the action.

4. The execution by the defendant in attachment of a redelivery bond, as provided for in section 199 of the code, can not be regarded as an admission of record that the order of attachment was rightfully obtained.

The true doctrine was stated, by way of argument, in the opinion of Judge Scott, in Fortman v. Rottier, 8 Ohio St. 553, as follows:

“ The interests of a party may imperatively require that his property shall be released from a wrongful attachment without delay. May he not, in such a case, promptly procure the discharge of the attachment by payment of the-claim on which it is founded, or by executing an undertaking-according to statute, and thus arrest the threatened ruin, without abandoning his right to redress for the injury already-done?- The proceedings in attachment would thus be terminated, but not adversely to the claim of the party who-sued out the process. Nor would such a terminaton conclusively show that the process was rightfully sued out.”

5. In an action on an undertaking for am attachment for the recovery of damages resulting from the wrongful seizure and detention of a stock of goods kept for sale by retail, the jury, in awarding compensation to the owners,, may allow for natural and necessary losses occasioned by an interruption in the owner’s business, or, in other-' words, “for the loss of business during the time the same-was suspended.”

6. Compensatory damages in such cases includes reasonable costs and expenses incurred in procuring the discharge-of the attachment, and the restoration of the attached property, but not the costs and expenses incurred in the-defense of the principal suit.

7. On the trial in the court below, the plaintiffs were permitted (under exceptions) to introduce the following-testimony, by a witness who had no knowledge of the goods-seized in attachment at Marysville, Ohio, but who was engaged in the sale of like goods at another place, to wit:.

Q. “ Supposing a stock of goods belonging to the plaintiff's at Marysville, Ohio, composed of hardware, tinware, of all kinds of cutlery, and agricultural tools, of the market-value of $6,000, is seized on attachment, inventoried, and appraised, using ordinary care in handling the goods, and said stock remains in the store, closed, in the hands of the-sheriff', in the mouth of August, 1865, but receiving no attention to preserve the goods from injury, for the period of •five days, and are then returned to the owner, what, in .your opinion, would be their market value to the owners?”

To which the witness answered: “ That the market value would be diminished in his opinion from ten to twenty-three centum.”

Q. “ Supposing a stock of goods composed of hardware, cutlery, tinware of all sorts, and agricultural tools, of the market value of $6,000, owned by the plaiutiffs, at Marysville, Ohio, and used in carrying on the retail business, which retail business amounted to $125 per diem, what is the value per diem of the use of such a stock of goods for five days, to the retail merghant owning them during the forepart of August, 1865?”

To which the witness answered: “ That it would be worth from $75 to $100 per day, and that the damage, by reason of the interruption to their business, would be as .much more.”

Q. “ "What would be the effect of the mere interruption, for that length of time, of such a business, by the sheriff', on •the market value of the goods?”

The witness answered: “ That such an interruption might very seriously injure the business by the loss of jobs and the -derangement of the trade, which might amount to more than the amounts of all the sales they might have made •during the time of the interruption.”

On cross-examination the said witness further testified: That it would, to some extent, cause an actual and intrinsic damage to the stock of goods, and that, in addition to that, there would, by the mere act of the seizure and levy of attachment be a stigma or discredit east on them, which would diminish the market value thereof in the hands of the owners, to whom they were returned, and included for this from five to fifteen per centum on the stock. It arises from the fact that the community ivould expect to buy the goods lower, on account of the fact that they had been seized by the sheriff. That it depended to some extent on the length of time the sheriff held them, and the extent it was known in the community, and the amount of -competition which existed at the time in that business at that place, and the extent of the interruption of the business.”

The said witness, on further cross-examination, testified: “ That he once had a stock of goods taken in that way, and he never could make as much out of them after they were returned as he could have done before. Also knew of a ¡stock of horses and buggies, kept as a livery-stable, which the owner wished to sell, and an attachment was taken upon them, and the owner could not sell them for as much .after as the owner had been offered for them and could have sold them for, before they were attached by the sheriff. The detention of the goods by the sheriff for one day, would depreciate the market value of the goods about as much as five days, if it was generally known. The depreciation from this cause arises from the fact that the owner has not the power to sell the goods as well after as before the interruption of the business. New goods brought into the establishment by the owner afterward, would be stigmatized in the same way; and say one-half of the stock were seized and levied on by the sheriff, it would affect those in the store-room not seized as much as those seized.”

That the testimony thus admitted, should have been excluded, under the general rule of evidence, which requires facts and excludes opinions, is not denied; but the defendants in error seek to justify its admission, under certain exceptions to the general rule, which allow opinions as to values, and also the opinions of experts who possess peculiar knowledge in matters of trade, etc.

We think, however, that, the admission of this testimony -can not be justified under either of the exceptions named. The testimony given can not be regarded as an opinion as to the market value of the goods discharged from the attachment. The criteria for determining market values did not enter into the opinion given. No reference was had to knowledge of the goods, or prices realized on sales, or prices demanded or offered in the market. The opinion was not based upon a knowledge of any fact, nor upon the assumption of any fact, which fairly and reasonably indicates the amount of loss or damage resulting from the causes named,, unless it be the very limited experience of the witness in relation to matters of that sort. But experience in such matters is not within the exception in favor of the opinions of experts. There is no skill or peculiar knowledge to be acquired by persons engaged in that particular line of trade, or any other trade, whereby a better opinion may be given in relation to the effect of the causes referred to. Customers-would be quite as capable as tradesmen to form an opinion in relation thereto.

Indeed, the only end accomplished by the admission of such testimony, is the substitution of witnesses for juors, and theories for facts.

8. The court below charged the jury in relation to the above testimony as follows:

“For the purpose of establishing the fact of a depreciation in the market value of these goods, is it competent for' the plaintiffs to call witnesses and prove, if they can, that the fact of the issuing and levy of the attachment upon a stock of goods impresses upon such goods such a stigma, blemish, or reputation as to reduce, impair or depreciate-the market value of the goods?” . . .
“Now, it is, perhaps, a fact indisputable, that there may be matters which may go to affect or impair the marketable-value of a commodity, which would not impair its intrinsic-value; as illustrations: such as second-hand goods, secondhand furniture, an article purchased out of a shop and used a slight apparent blemish on a horse, not affecting his strength, speed, draft, or sight; the value of second-hand-clothing in, larceny. The idea may, in some cases, be fanciful and unreasonable.
“ If, then, the jury should find from the evidence that the-mere levy of an attachment on a stock of goods, kept for the purpose of sale by retail, does impair or depreciate the market value of the goods in the community where they were at the time, that the refutation of the goods themselves-is so far affected as to affect their marketable value prejudicially, you may take that into consideration in deter-mining the amount of the plaintiffs’ damages.”

In this instruction, we think there is error. If it could be shown by any legitimate testimony (which certainly excludes the mere opinions bf witnesses), that the mere levy of an attachment upon a stock of goods kept for the purpose of sale by retail, so far affects the reputation of the-goods as to impair their marketable value, still we think the injury is too vague and uncertain and the damages too remote to constitute a ground for recovery in an action on the attachment undertaking.

There are other assignments for error in the petition, but .among them we find no substantial error.

Judgment reversed and cause remanded.  