Ah Thaie v. Quan Wan

concurred, as follows:—

Generally, the recovery of counsel fees is not allowed as part of the damages, and the reason given for it is because - the loss is consequential, and not the actual and direct injury complained of.

*219 But where, as in this case, the injury complained of is the improper commencement and prosecution of a writ, or of any process in a suit, the counsel fees in such case is a loss as immediate and direct as any other, and should be allowed. Upon this principle, I think the case of Heath v. Lent, 1 Cal. Rep., is not law.

I concur in the affirmance of the judgment.

delivered the opinion of the court.

The appeal in this ease, is brought upon a judgment overruling the demurrer to the complaint.

The court below overruled the demurrer, and rendered judgment against defendants, upon the ground that counsel fees necessarily paid to procure a dissolution of the injunction, are recoverable in an action brought upon an injunction bond.

It is insisted, that this court has already decided that counsel fees cannot be recovered in an action like this; and the case of Heath v. Lent, 1 California Rep. 412, is cited as authority. In that case, the court, per Hastings, C. J., laid down the rule, that in an action on a bond for damages accruing from a wrongful suing out of an attachment, counsel fees constitute no part of the damages.

We are referred also to a decision of the Supreme Court of Indiana, Davis v. Cowre, 7th Blackford, which it is contended, sustains this rule. As to the first, we say, that Chief Justice Hastings does not base his decision upon the point raised here; besides, even though it may be said, that it decides the point here, we question the correctness of the judgment of the court in that case as it stands, and think it…