235 Pa. 179 | Pa. | 1912
Opinion by
This is an appeal by the sureties on a bond given to dissolve a foreign attachment. The principal defendant, a foreign corporation organized for the purpose of conducting a brokerage business, was brought into the court below on a writ of foreign attachment. The amount of the bank deposit attached, expressed in even numbers, was $8,000.00; the margins called by the brokers, and paid by Gettman on his speculative account, were $23,000.00; the liquidated damages claimed, being the sum demanded at the time the writ issued, were $83,000.00; the penalty of the bond given to dissolve the attachment was fixed at $65,000.00, about double the sum demanded in the cause of action; and by reason of an amendment to the original statement of claim allowed after the bond was filed, which amendment substituted a different measure of damages, judgment was obtained for $89,000.00. In other words, Gettman, with $23,000.00 advanced as margins to his brokers, attached their bank deposit of $8,000.00, upon a specific demand for $33,000.00; was permitted to obtain a judgment for $89,000.00, and now seeks to recover $65,000.00 from the sureties on the bond given to dissolve the attachment. Can this be done? The answer depends upon several interesting questions of law. If the pleadings had not been amended the liability of the sureties would have been measured by the liquidated damages demanded when the writ issued. The questions to be determined here are (1) whether that liability can be almost doubled by what subsequently occurred without their knowledge or consent, and, (2) whether the sureties are totally discharged from any liability by reason of the amendment. At the outset, it may be remarked, that the bond in the case at
The condition of the bond in the present case is to “pay the debt or damages, interest and costs that may be recovered,” and follows the requirements of the act of March 20, 1845, P. L. 188. This act provides, in all cases dissolving foreign attachments, the bail shall be bail absolute, in double the amount in controversy as nearly as the same may be ascertained, conditioned as above indicated. In order to determine what the legislature intended by the requirements of this act, it is necessary to review the state of the law at the time of its enactment. At common law bail was of two kinds, bail to the sheriff, called bail below; and bail to the action, called bail above. In bail above the sureties undertook generally, or in a sum certain, that if the defendant' should be convicted he should satisfy the plaintiff, or render himself into custody. The rule as to
It is suggested in the argument for appellants that it was necessary for the plaintiff to liquidate his damages before instituting the foreign attachment proceeding because the action would not lie in tort for unliquidated damages. If it was necessary for the plaintiff to liquidate his damages in order to secure the writ of foreign attachment, and he did so, it would follow as of course that all parties to the litigation, including the sureties on the bond, were bound by what the law requires, and the extent of their liability would be measured accordingly. Prior to 1905 the law was that a writ 0‡ foreign attachment would not lie for unliquidated damages arising from tort or breach of contract; but would lie in actions ex contractu when the amount of the demand was ascertained, or, though not liquidated in the strict sense, was susceptible of ascertainment by some standard referable to the contract itself, sufficiently certain to enable the plaintiff by affidavit to aver it, or a jury to find it: Carland v. Cunningham, 37 Pa. 228; Girard Fire & Marine Insurance Co. v. Field, 45 Pa. 129; Strock v. Little, 45 Pa. 416. As late as 1902 this court held in Wood v. Virginia Hot Springs Co., 202 Pa. 40, that a foreign attachment would not lie on a claim founded on tort for unliquidated damages. In this state of the law the act of March 30, 1905, P. L. 76, which amends section 44 of the act of 1836 was passed. This act povides that a writ of foreign attachment may be “issued in all actions ex
While the title made it apply “to certain actions ex delicto,” the body of the act provided that it should apply to actions ex delicto “for a tort committed within the commonwealth.” As both the title and the body of the act express the intention that a writ of foreign attachment may be issued in all actions ex contractu, and in certain actions ex delicto, meaning torts committed within the commonwealth, in which latter case the damages must of necessity be unliquidated, it would seem to necessarily follow that the act means what it says, and that the writ may be issued in all actions ex contractu, including an action for unliquidated damages, and in actions ex delicto for a tort committed within the commonwealth. The legislative history of the passage of the act as well as the express language of its provisions show conclusively that this was the intention of the legislature. Again, it has been suggested, that the writ will not lie against a foreign corporation even for a tort committed within the commonwealth under the act of 1905. To sustain this contention it is argued that foreign corporations were not within the purview of section áá of the act of 1836, which was amended by the act of 1905, but were governed by section 76 of the act of 1836, which was not amended. This is an erroneous view of the effect to be given the act of 1836 as amended by the act of 1905. It is true that section 76 of the act of 1836 did provide for the issuance of a writ of foreign attachment against foreign corporations, either aggregate or sole, but this was merely declaratory of the existing law at that time. The action of foreign attachment in Pennsylvania is based upon one of the customs of London: Laws and Privileges of London, 113-110; Brandon on Foreign At
It is strongly urged here that the allowance of the amendment about which complaint is made had the effect of discharging the sureties, and the cases cited by both sides relate very largely to this question. We
Judgment reversed and record remitted to the court below for the purpose of having judgment entered in accordance with the views herein expressed.