delivered the opinion of the Court:
The damages which were recovered in this case were the expenses which were incurred in defending against the suit brought by Martin, against the appellee, in which the capias was issued, and were the very same, none other or different than they would have been had that suit been commenced by a summons, instead of by the writ of capias ad respondendum. The condition of the bond was not to prosecute the suit with effect and without delay, and to pay the defendant all costs and damages that might be sustained by the wrongful institution and prosecution of the suit, but to prosecute the capias with effect and without delay, and to pay the defendant all costs and damages that might be sustained by the wrongful suing out such capias. It is not the legal rule to exact bond and security for the successful prosecution of suits, or for the indemnity of defendants against damages for the wrongful instituting and prosecution of suits, but only in the case of particular writs, which' are calculated to work injury in their execution,' as, the writ of attachment, injunction, replevin, and the writ of capias ad respondendum where the body is taken and imprisoned, are bonds required to indemnify against damages.
The suing out and service of a writ of capias ad respondendum may occasion great damage to a defendant by reason of the particular character of the writ itself, and, as we conceive, it is such special damage from the kind of the writ, and that which might be incurred in the setting aside of such a writ, that the bond indemnifies against, and not against expenses incurred in the general defense against the cause of action upon its merits without any reference to the writ, and being *373only the very same as would have been incurred had the suit been commenced by a summons instead of by a capias.
The language of the condition of the bond respects the writ itself, and not the suit, and the damages contemplated are those, we think, which respect the writ, in contradistinction from the suit. The damages recovered here were not sustained by the wrongful suing out of the capias, but by the wrongful institution and prosecution of the suit. Had the suit been commenced by a summons, instead of a capias, these damages would have been just the same, the kind of writ by which the suit was commenced making no difference in regard to them, and there is no sound reason why these damages should be given any more than they should if the suit had been commenced by summons.
The damages here given, we are of opinion, are not recoverable, and we see from the evidence no ground of recovery for at least more than nominal damages, perhaps, for breach of the condition in not prosecuting the capias with effect.
The judgment will be reversed and the cause remanded.
Judgment reversed.