
    Dyke and Hurlburt v. Augustus W. Walker.
    Where a party has made a seizure of the property of another, who was protested in consequence of his property being thus tied up, the party making the seizure is responsible for damages, and in assessing the damages, the injury arising from the loss of credit, &c., in consequence of the protest, are not “ too remote” to be considered.
    Lawyers’ fees incurred in recovering property which had been improperly seized in a suit against another person, may he recovered hack in a suit for damages for the illegal seizure.
    APPEAL from the Second District Court, of New Orleans, Canon, J.
    
      A. N. Ogden, for plaintiff,
    contended: This action is founded on article 2294 of the Civil Code, which declares : “ Every act whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it.” The damages allowed by the jury are extremely moderate, and not by any means commensurate with the extent of the injury inflicted by the wanton and reckless conduct of defendant, in seizing their property without any other reason than a mere suspicion that this particular flatboat of hay, among the hundreds afloat in the river Mississippi, might be the one on which his agent had informed him, by letter, he had made a small advance. The testimony of G. W. Cohen and of Thomas Gaff, fully support the verdict of the jury.
    
      Elmore and King, for the defendant,
    contended: This is an appeal from a judgment on a verdict for damages against the defendant, for having seized in another suit, as is alleged by the plaintiffs, their property “ without any sufficient or justifiable cause.” The evidence shows that Walker had received intelligence that Wasson had purchased for him, at Memphis, a flatboat of hay. That about the time the boat should have arrived at New Orleans, a flatboat of hay did arrive at Lafayette from Memphis. That this was the only vessel of the description which Wasson informed Walker he had purchased, which arrived about that time from Memphis. That upon the arrival of said flatboat, the receiving clerk of the defendant, James Wallace, went on board and enquired who were the owners of the boat. He was told by those on board “ to find out.” He called several times, and the persons on board refused to give him any satisfactory information. He told them Mr. Walker thought the vessel belonged to him, and there might be some trouble about it. But still they would not call on Mr. Walker as requested, or make any explanations. Wallace believed the vessel was the one Wasson had purchased for Mr. Walker, and so informed Mr. Walker. The vessel which Wasson had given the intelligence of having purchased never arrived. It was upon the information of Wallace that Mr. Walker seized the boat. Under this state of facts, Mr. Walker commenced suit in the parish of Jefferson against Owen Legg and Mirk, the apparent owners of the boat and cargo.
    On the 15th of March, 1847, the boat and cargo was seized. It is proved that at the time of the seizure the hay was worth about $20 per ton. After that suit was brought, the present plaintiffs intervened, and claimed the boat and caigo. By consent of the intervenors, the boat and hay were sold on the 9th of April, 1847, before they had been under seizure a month, and the hay brought, at the sale, fifty per cent more than it was worth at the time of the seizure. The intervenors gained the suit and received the proceeds of the said sale. Not content with having received fifty per cent more than they had actually contracted to sell their hay for, they brought the present s,uit for damages.
    The jury, by a process of reasoning known only to juries, construed a positive gain of fifty per cent into a damage to the plaintiffs of six hundred and sixteen dollars and some cents, for which sum they gave their verdict.
    It was contended in behalf of the plaintiffs before the jury, and is so alleged in the petition, that in consequence of the seizure, the plaiutiffs were protested for $2700, and thereby their credit was destroyed, and they greatly damaged. We deny, in the first place, that the evidence sustained the allegation. The boat and hay when sold by the sheriff, brought but eleven hundred and fifty-six dollars and fourteen cents. The hay sold then for fifty per cent more than the plaintiffs had agreed to sell it for at the time of the seizure. How the plaintiffs could have paid $2700 with their boat and hay, even if the seizure had never been made, is a mystery to us.
    It is true there were thirty tons of the bay sold to Burgess at twenty dollars per ton, for which he very improperly and illegally refused to pay. But the hay sold by the sheriff brought more than the whole cargo would at twenty dollars per ton.
    A witness, who styles himself a merchant, miller and distiller, tells us that one of the plaintiffs, Hurlburt, drew a bill, which some bank refused to discount because Dyke and Hurlburt had been protested in New Orleans; but he says nothing about the effect of the protest upon the credit of the firm of Dyke and Hurlburt. He further tells us the only resources of that firm were their credit, and their only business “the adventure” on the river, which consisted so far as we know, of one flatboat of hay. Another witness speaks of one of the plaintiffs being sued for a small debt, and that his property was sold to pay the judgment. Their own witnesses show that their loss of credit was owing to their want of means, and not to the seizure made by the defendant. It is difficult to imagine how the parties could have been injured in a pecuniary sense by the seizure, when they gained fifty per cent profit by it.
    
      Secondly. We deny that the plaintiffs can recover anything on account of damages so remote and uncertain. The authorities upon this point are too numerous and conclusive to require further argument. Civil Code, 1928, secs. 1 and 2, 2294 and 2304. Pothier on Obi. p. I, chap. 2, art. 3. Sedgwick on Damages, p. 64, et seq. Helery v. Mornet, 11 M. R. 10. Gaulden v. Mc-Phaul, 4th Ann. 80.
    The same rule, as to proximate and remote damages, holds in cases of quasi-contracts and quasi-offences. Hopkins v. Van Winckle, 2d Ann. 143 ; also 4t.h Ann. 80. Lahaye, Code Napoleon, 1151. Notes from Bigot, Préamenu and Delvincourt.
    The evidence shows the defendant had probable cause for the seizure of the boat and her cargo.. That he was not actuated by malice. That the seizure resulted in a benefit of fifty per cent to the plaintiffs. Under these circumstances, we cannot conceive how it is possible for them to recover damages of the defendant. There Was an attempt made to prove damages on account of the -fees paid to lawyers by the plaintiffs in their intervention suit. The proof was objected to; but even if admitted is not sufficient to establish any claim for damages on this account.
   The judgment of the court was pronounced by

Preston, J.

In the spring of 1847, in a suit against Legg and Mirk, the defendant caused to be seized a fiatboat load of hay belonging to the plaintiffs, alleging that it belonged to him. The plaintiffs were in possession of the property seized, and intervened in the suit to claim it. After trial it was decreed to belong to them; and having been sold by the sheriff, by consent of parties, during the pendency of the suit, in June, the proceeds were delivered to them by the sheriff.

The defendant caused the property to be seized on the supposition that it was a flatboat of hay, the purchase of which he had ordered at Memphis by one Wasson. He by no means shows that he made proper investigations to ascertain that the property was his before he seized it. It turned out on trial to be the property of the plaintiffs, with whom the defendant and his agents had no relations, and indeed he shows scarcely any pretext for seizing the property.

The plaintiffs had raised the means of purchasing the hay at Aurora, in Indiana, by having discounted a bill on New Orleans. Their only means of payment was the proceeds of the cargo of hay, or the credit it gave them. The property being in litigation, they could not use these means of meeting their bill. It was prot-sted, and their credit and business broken up. The property of one of them was sold under execution for a small debt. They incurred expenses in New Orleans on account of the seizure of their property.

These consequences were not too remote to be considered by a jury in assessing their damages, for which this suit is brought. The damages were assessed, by the verdict of a jury, at six hundred and sixteen dollars and forty-six cents, and we are unable to say that the damages are excessive.

It is true, that the hay rose in value during the pendency of the suit. This no doubt was considered by the jury, but it was connected with the fact, that the plaintiffs had sold the whole cargo at the market price; had delivered a part, and that the purchaser refused to pay for that part in consequence of the nondelivery of the whole, and probably claimed the rise in the market price of hay as belonging to him, on the whole cargo.

The testimony of Wallace, offered by the defendant and rejected by the court, was evidently hearsay testimony, and was properly rejected, and ought not to have altered-the verdict if it had been admitted.

The testimony of Leeds and Weaver given in the suit between Walker and Legg and Mirk, offered by the plaintiffs and received by the court, is not before us, nnd we cnnuot say that it prejudiced the defendant’s case, or indeed decide any thing in relation to it.

The allegation in the plaintiffs’ petition, that they had been subjected to lawyers’ fees, in consequence of the seizure of their property by the defendant, authorized the court to receive the testimony of Ilir. Bradford, which was objected to by the defendant.

We are of opinion, that the judgment of the district court should be affirmed, with costs in both courts.  