The defendants are appellants from a judgment of the Sixth District Court of New Orleans condemning them to pay five hundred dollars, for an illegal and malicious arrest of the plaintiff in a civil action.
The writ, under which the arrest complained of was made, was quashed on proof that the present plaintiff was a non-resident and had not absconded from his residence. One of the defendants, Ivens, was charged simply because he was surety on the bond given by the other defendant, Bonham, to obtain the arrest. The amount of this bond is $1950, and the amount claimed in damages for the illegal arrest is $10,000, one-half as special damages and the other half for “personal incligmty, die.” The present plaintiff was bailed after having remained in the custody of the Sheriff from one to six hours.
1st. The plaintiff has a clear right of action, ex contractu, under the bond, to the same extent that would have the owner of sequestered property for the wrongful suing out of a writ of sequestration, the condition of the bond being the same in both cases. O. P. Arts. 276 and 214 as amended by the Act approved March, 15th 1856, p. 80; Wm. Biggs v. D’Aquin Brothers, 13 An. 21. Hence it is not necessary, in order to entitle a party to recover special damages resulting from his illegal arrest, that he should allege and prove malice and want of probable cause. Perrin v. Planchard et al., 15 An. 133.
The only special damages proved in this case, is the sum of fifty dollars paid to counsel to obtain the setting aside of the writ of arrest.
2dly. In an action for exemplary damages by reason of a malicious and unfounded arrest, the plaintiff, in order to succeed, must prove both malice and the absence of probable cause; and we think that the plaintiff in this case has failed as to one of the ingredients at least.
It is true that, in point of fact, there was no probable cause for the arrest because the defendant, Phillips, was a non-resident; but Bonham had a good cause of action in the ordinary form.
It is however in evidence, that the defendant, Bonham, was controlled, or acted under the legal advice of an old iiractitioner at the bar; that, although the plaintiff was in the habit of visiting New Orleans yearly, he had, on this occasion, been in New Orleans with his family for nearly two months, and had the intention of purchasing a sugar estate in Louisiana, *388in fact lie bases Ms claim for damages partly on the failure of his acquisition of the plantation in consequence of the arrest.
We therefore conclude, from all the surrounding- circumstances of the case, that the defendant Bonham acted in good faith and without malice. Edmond M. Gould v. Gardner, Sager & Co., 8 An. 11, and 11 An. 289; Greenleaf, vol. 2, $ 459.
We must not be understood as conceding that a surety on a bond given to procure the arrest of a debtor can, when sued as such only, be mulcted in vindictive damages; we express no opinion on this point.
It is therefore ordered, that the judgment of the District Court be avoided and reversed; and it is further ordered, adjudged and decreed, that the plaintiff have judgment against the defendants, -m solido, for the sum of fifty dollars, and the costs of the lower court; the costs of the appeal to be paid by the plaintiff and appellee.
Yoobhies, J., absent.