for his hogs. He does not claim for any time spent or expense incurred after he had ascertained where his hogs were. He would have no right to recover for time spent or expenses incurred after he had ascertained where his property was. It is shown by the evidence by the defendant that he knew that the plaintiff was hunting for his hogs, and did not inform him where they were. We are of the opinion that the hogs of the plaintiff were wrongfully taken away by the defendant, and that he permitted the plaintiff to spend time and money, and delay his plowing, in the search for his property, and that it is reasonable and just that he should compensate him in damages therefor. We do not think the amount found by the jury is excessive, upon the facts in the case The Court committed no error in overruling the motion for a new trial. The judgment is affirmed, with costs.

T. F. Davidson, for appellant.

F. H. Brown and F. McCabe, for appellee.

WITTICH v. O'NEAL

233. SUPREME COURT OF FLORIDA. 1886

22 Fla. 592

APPEAL from the Circuit Court for Escambia County. The facts of the case are stated in the opinion.

W. A. Blount for Appellant.

J. C. Avery for Appellees. Appellees admit that the Courts of last resort in most of the States have decided the question in this cause against their position; but they plant themselves with confidence on the decision of the United States Supreme Court, which has been uniformly followed by the other Federal Courts and some of the State Supreme Courts. Oelrichs v. Spain, 15 Wall. 211; Olliphant v. Mansield, 36 Ark. 191. ... Public policy is against the allowance of fees of attorneys as damages in any suit. What is that policy? The language of appellant's brief aptly expresses it:

"They are disallowed from motives of public policy, because, otherwise, the courts would be closed to the timid and open to the bold, righteous claims would be unasserted, and righteous claims undefended for fear of the heavy loss entailed by a failure to win a verdict, and the courts would no longer be for the rich and the poor alike. The true policy is to cheapen litigation in order that the assertion of right should not depend entirely upon the pecuniary ability of the assertor."

Another reason of that policy is that an attorney in the prosecution of his client's cause should not be, or be suspected to be, or subject to the suspicion of being, diligent or negligent in proportion to the pecuniary condition of his client's adversary. Such temptations tend to barratry, etc.

In what respect does a claim for an attorney's fee against an unsuccessful adversary, when based upon a bond for damages, differ from such claim without reference to such bond, in so far as public policy is concerned? I am unable to discern in what particular there is a greater morality or a wiser or purer public policy in the one than in the other.

If it is immoral, unwise or against a pure public policy to require an unsuccessful suitor to pay the fee of his adversary's attorney incurred in an action of slander, false imprisonment or trover in which there is no bond, how does the giving of a bond alter the case? If it does, then if the Legislature should enact that at the institution of every suit a bond must be filed by the plaintiff to indemnify the defendant for damages resulting from the bringing of the suit, the whole policy referred to would be defeated and a great impetus given to litigation. Substance would be forced in all cases to yield to form. Policy would be wiped out by a quibble.

In ordinary actions the law gives a successful suitor the damages he has sustained by reason of the injury on account of which he sues. But in doing this, there is excluded from reasons of public policy the money expended in employing attorneys in the suit. . . .

It is not even alleged that the fees have been paid. Many Courts hold this to be necessary. Pruder v. Grimm, 28 Cal. 11; Packer v. Nevin, 67 N. Y. 550.

The Chief Justice, MCWHORTER, delivered the opinion of the Court: The questions presented by the record are:

1st. In a suit on the bond given to obtain a temporary injunction, are counsel fees, incurred to dissolve the injunction, damages that may be recovered?

2d. Is it essential that the plaintiff in such suit should have actually paid such fees, or is it sufficient that he has become liable therefor?

1. The record shows that a temporary injunction was issued in a suit then pending between the surviving partners of the firm of Keyser, Judah & Co., and W. L. Wittich, and that the injunction was dissolved "by the judge of said Court upon the application of the defendant in said suit, the plaintiff herein," on the 6th April, 1881, and that on the 9th day of April, 1885, a final decree was rendered in the suit dismissing the bill therein. The appellees were securities on the injunction bond, the condition of which is that if the obligors "shall pay to the said W. L. Wittich all damages he may sustain by the issuing of said injunction in case the injunction be hereafter dissolved, then this obligation to be void." If the plaintiff was compelled to employ counsel to dissolve the temporary injunction, it is clear that he was damaged to that extent, and the question above mentioned arises as to whether such damages are recoverable or not.

In the case of Ah Thaie v. Qan Wan & Kan Se, 3 Cal. 216, the complaint stated that on the 28th of May, 1853, one Chin Lan and Ah

Lee filed a complaint against the plaintiff, and sued out a writ of injunction against the plaintiff; that to obtain the same the defendants executed a bond for $8,100, to pay the plaintiff such damages as he might sustain by reason thereof; that the plaintiff was obliged to procure counsel to obtain a dissolution of such injunction at the cost of $1,200. Defendants demurred and assigned for cause the charge of $1,200 paid counsel. The Court held:

"The language of the condition of the bond is undoubtedly broad enough to embrace the necessary counsel fees, which the defendants have been obliged to pay out in order to procure the dissolution of the injunction. The necessity of paying such counsel fees is an actual damage that the defendant has sustained in defending himself and procuring a dissolution of the injunction, and the condition in the bond is imperative that the obligors 'shall pay to the parties injured such damages as they may sustain by reason of the injunction.' It appears to us that the principle is not only just in equity, but sound in law, that all the damages to which a party may be put by the wrongful issuance of an injunction should be recoverable in action on the bond, and reasonable counsel fees should be included in those damages, of course, leaving the amount to be assessed by the jury."

The Court cited in this case the decision of Chancellor Walworth, in Edwards v. Bodine, 11 Paige Chancery Reports, 224, 225. The same principle has been upheld in the following cases. Darby Bank v. Heath, 45 N. H. 524; Cullins v. Sinclair, 51 Ill. 328; Behrens v. McKensie, 23 Iowa, 341; Reece v. Northway, 58 Iowa, 187; Brown v. Jones, 5 Nevada, 374, 377; Livingston v. Exum, 19 South Carolina, pp. 223, 229. Many other cases might be cited to the same effect.

Appellees very frankly admit the "Courts of last resort in most of the States have decided the question in this cause against their position," but they plant themselves with confidence on the decision of the United States Supreme Court in Oelrichs v. Spain, 15 Wallace, 211, which has been followed by the other Federal Courts, and some of the State Supreme Courts. The language of the Supreme Court, on the question, is as follows:

"The point here in question has never been expressly decided by this court, but it is clearly within the reasoning of the case last referred to, and we think is substantially determined by that adjudication. In debt, covenant and assumpsit, damages are recovered, but counsel fees are never included. So in equity cases, where there is no injunction bond, only the taxable costs are allowed to the complainants. The same rule is applied to the defendants, however unjust the litigation on the other side, and however large the expensa litis to which he may have been subjected. The parties in this respect are upon a footing of equality. There is no fixed standard by which the honorarium can be measured. Some counsel demand much more than others. Some clients are willing to pay more than others. More counsel may be employed than are necessary. When both client and counsel know that the fees are to be paid by the other party there is danger of abuse. A reference to a master, or an issue to a jury, might be necessary to ascertain the proper amount, and

this grafted litigation might possibly be more animated and protracted than that in the original cause. It would be an office of some delicacy on the part of the court to scale down the charges, as might sometimes be necessary." "We think the principle of disallowance rests on a solid foundation, and that the opposite rule is forbidden by the analogies of the law and sound public policy."

Against such an array and weight of authority as sustain the conclusion of the Court, as expressed in 3 California, 216, in favor of the principle that attorney fees are recoverable in a suit on an injunction bond, we are loth to follow the few authories that hold the contrary, in the absence of some controlling argument or reason that would convince our judgments of the correctness of these conclusions.

The reasons set forth in Oelrichs v. Spain are to our minds not satisfactory, and we think are fully answered in the brief of counsel for appellant. . . .

2. The remaining question is, Is a liability for the payment of counsel fees sufficient, or must they have been actually paid? . . . We think the great weight of authority maintains the principle that a fixed liability is sufficient without actual payment. In the case of Underhill v. Spencer, 25 Kansas, 71, 73, the Court say:

"The other question is, whether the defendant in the injunction suit can recover the fees of his attorney for services in obtaining a dissolution of the injunction before he has paid them. In this case the amount was agreed upon and the sum was reasonable. The defendant's liability was absolute, but the fees had not in fact been paid. With perhaps the single exception of California, the authorities agree that if the liability is fixed and absolute, it is enough; payment is not an essential prerequisite."

We do not wish to be understood as holding that the defendant and his attorney fix the fee which the plaintiff in the injunction suit must pay. Such fees must be reasonable and proportionate to the value of the services to the defendant and the skill shown and work done by the counsel. Judgment reversed and cause remanded.1

1 [PROBLEMS:

The defendant Mary set fire wilfully to the house of Charles and destroyed it. The plaintiff was under contract insuring Charles against the destruction of the house by fire. Mary was Charles' wife, and expected that the fire would obtain payment of the insurance money to Charles. Assuming that Charles obtains the money, is Mary liable to the plaintiff, and for what amount? (1881, Midland Ins. Co. v. Smith, L. R. 6 Q. B. D. 561.)

The defendant culpably caused the death of a third person, whose life the plaintiff had insured. The policy being paid, may the plaintiff recover from the defendant, and how much? (1877, Insurance Co. v. Brame, 95 U. S. 758).

The plaintiff had a contract with K. to repair an embankment, crossing K.'s land, for a lump sum. After entering on the work, he discovered a large extra amount of repairs needed, by reason of the defendant's improper construction of its water-main. May the plaintiff recover such extra cost? (1875, Cattle r. Stockton Water Co., L. R. 10 Q. B. 453.)

The plaintiff levied an attachment for debt on W. and had him arrested. The

defendant forcibly rescued him from the officer, "whereby the plaintiff lost his debt." Has the plaintiff an action? (1617, Wheatley v. Stone, Hob. 180.)

The plaintiff was the owner of premises subject to a mortgage with power of sale or default. The mortgagees were not in a hurry for the money, and informed the plaintiff that on maturity they would give him ample notice when they desired payment. Just before maturity, the defendant falsely represented to the mortgagees that the plaintiff desired them to assign the mortgage to M., and they did so. M. appointed the defendant as agent to foreclose and sell, and the notice of sale was so given as not to come to the plaintiff's knowledge. The sale was made, during his absence, to one H., who was ignorant of the facts. The plaintiff was thereby obliged to pay $500 to H., to obtain a deed. Has he an action? (1886, Randall v. Hazelton, 12 All. 412.)

The plaintiff's store was located on the banks of an inlet, close to a railroad depot, and drawbridge. The depot had been located by contract between the plaintiff and the H. R. Co. The defendant railroad company was the successor of the H. R. Co., but was not bound by that contract. To change the railroad drawbridge into a fixed bridge required the consent of the riparian owner, the plaintiff. He refused consent, and the defendant railroad removed its depot a third of a mile, thus depreciating the value of the plaintiff's land and injuring his business. He thereupon consented to the change of the bridge and a depot was again built by the defendant on the old site. The defendant then refused to open the depot for traffic unless the plaintiff would further consent to the closing of a street giving access from the plaintiff's land to the docks. On the plaintiff's refusal to consent, the plaintiff went to a person holding a mortgage for $35,000 on the plaintiff's premises, and persuaded him to foreclose it and to sell the premises. The buyer then gave his consent, the street was closed, and the depot opened. The mortgagee had agreed with the plaintiff, before the defendant persuaded him otherwise, not to foreclose but to give the plaintiff time. In consequence of which, the plaintiff was damaged in his business to the amount of $150,000. Has he an action? (1882, Rich v. New York C. R. Co., 87 N. Y. 382.)

The plaintiff was evicted from a street-car by the defendant's agent. One of the issues was whether there was such insult as authorized exemplary damages. If only compensatory damages were allowed, could counsel fees be included? (1909, United Power Co. v. Matheny, · Ohio, —, 90 N. E. 154.)

The plaintiff's horse was injured by the defendant's fault. The plaintiff incurred an expense of $35 for the services of a veterinary surgeon to cure the horse. In spite of all, the horse died. What amount may the plaintiff recover? (1889, Ellis v. Hilton, 78 Mich. 150.)

The plaintiff was corporally injured by the defendant's fault. As a part of his efforts to restore his health, the plaintiff went for a short stay at some hot springs and again at some "electric wells." May he recover these expenses? (1890, Hart v. Charlotte C. & A. R. Co., 33 S. C. 427, 12 S. E. 9.)

CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. XV, § 529, p. 543.