The transcript does not disclose which of the grounds contained in the demurrer to the petition of ap pellant were sustained by the court below. Those relied upon here are: 1st. The instrument sued on is not one provided by our statutes ; and 2d. Cannot be enforced as a commop law bond.
*425It is said, also, that it is not made payable as directed by the order authorizing it, but this is not borne out by the record. The order does not name the sheriff as the party who is to be made obligee of the bond. It merely requires that it shall be filed with that officer, and no person having been designated as payee, and William Eichoff being the party for whose security the obligation was to be executed, it was quite proper to make it payable to him.
The instrument is, of course, not given in pursuance of any statute, and must be sustained, if at all, as a common law obligation. The objections raised to it as such are: 1st. That it is not shown that the plaintiff consented to the execution of the bond. 2d. That it was given to secure a right which the principal obligors were already entitled to enjoy, and hence w-as executed under coercion.
The consent of the plaintiff, if required, was sufficiently given when the order for the bond was entered up. He must have been present in court at the time, either in person or by attorney. It does not appear that he made any objection to the order or the bond at any subsequent period, but on the contrary ratified it by defending the proceedings prosecuted by the intervenors to get possession of the money stayed in the hands of the sheriff by reason of the execution of the bond.
Nor was the bond given to secure a right already possessed by the intervenors. It is true they had the right without bond to assert in a court of justice any claim held by them to the money in the hands of the sheriff, but they had no right to have the money withheld from the plaintiff till their claim could be determined. This would, in effect, be a seizure in advance of the property in controversy, and a detention of it from the person having the apparent ownership and present right of possession, and to deprive him of the use of it pending the controversy. The theory of the law is, that in such cases the defendant must be secured by bond at least against all such damages as will necessarily follow from a resort to so stringent a process.
The proceeding in this case was not dissimilar to one by injunction, and that writ cannot, unless, perhaps, in a few exceptional eases, be obtained, either under our statutes or according to the principles governing the chancery courts, without first securing the opposite party against loss and damage by a sufficient obligation.
In the present case, the money in the hands of the sheriff was the proceeds of property attached at the suit of the appellant. The attachment lien had been foreclosed for his benefit, and he was entitled to the proceeds of the property sold in part satisfaction of *426his debt. But for the order of court and the bond given in pursuance of it he would have received his money so soon as the property was sold. It was retained in the officer’s hands in pursuance of the order and bond for the benefit of the intervenors, and to the damage of the appellant. All this occurred at the instance and request of the intervenors, and in no sense, therefore, can the bond be said to have been' extorted from them by coercion or oppression. The case is so clearly and widely different from that of Wooters v. Smith, 56 Tex., 199, that it is unnecessary for us to draw the line of distinction between them. There was "error, therefore, in the ruling of the court below sustaining a demurrer to the petition upon the grounds taken in the briefs of appellants.
We think, however, that the appellant is not entitled to recover damages to the extent claimed in his petition.
We are not informed by the petition as to the nature of the claim set up by the intervenors to the money in the sheriff’s hands. In the absence of averment that it was frivolous or made for delay, we must presume that it was based upon some apparently reasonable claim of right. If so, the only damages to which the appellant could lay claim were those naturally resulting to him from the money lying idle and unemployed during the time intervening between the date of its receipt by the sheriff and its payment to Eichoff. These would be satisfied by a recovery of the interest claimed in the petition, and this, we think, is the only item of damages prayed for, that the allegations of the petition as it now stands entitle the appellant to recover. If he could under any state of case recover attorney fees and,traveling expenses (which we do not by any means admit), it does not appear that these were the natural results of the bond, but he would have been subject to the same expenses had the intervenors contested his right to the money without detaining it in the officer’s hands, which they might have done without bond and security. The sureties cannot therefore be held liable for these damages.
The case is a novel one, but assimilates itself, as we have stated, in some respects toan injunction proceeding, and the plaintiff below should in no event recover more than interest as stated and the costs in the present case. The judgment is reversed and the cause remanded.
Reversed and Remanded.
[Opinion delivered April 22, 1884.]