Gunnis, Barritt & Co. v. Cluff

111 Pa. 512 | Pa. | 1886

Mr. Justice Sterrett

delivered the opinion of the court, February 15th, 1886.

Assuming, for the purposes of this case, that plaintiffs in error were unjustly injured as alleged in their affidavit of defence, and by reason thereof have a good cause of action against plaintiff below, the question is whether the damages they sustained can be defalked against his demand in this action.

On November 14th, 1884, plaintiff below filed an affidavit in which he alleged the debt in suit, evidenced by the check of plaintiffs in error, was fraudulently contracted, gave security and issued an attachment under the Act of 1869. By virtue of the writ their deposits in bank and goods in store were attached by the sheriff. On November 17th, they obtained a rule to dissolve the attachment, and five days thereafter the same was dissolved by the court. The funds and property attached having been thus released, the action proceeded, according to the provisions of the Act, “as in a case of summons for debt regularly issued and duly served.” A copy of the check having been filed, plaintiffs in error filed an affidavit of defence, tacitly admitting their liability on the check, and setting up as their only defence thereto the damages to their credit and business caused by the unwarranted issuance of the attachment. A rule for judgment having been taken, the court below considered the affidavit- of defence insufficient, and accordingly entered judgment against plaintiffs in error for the amount of the check in suit and interest thereon. The single question thus presented for o.ur consideration is that above stated.

In Plunkett v. Sauer, 101 Pa. St., 356, we held that damages resulting to a defendant from plaintiff’s failure to successfully prosecute an attachment under the Act of 1869, arose ex contractu,, and were proper matter of set-off by the defendant in a subsequent action for the same debt. It therefore follows that the set-off claimed by plaintiffs in error cannot be excluded, either on the ground that the damages arose ex delicto or that they are unliquidated. They are capable of liquidation, and hence they are on the same footing as other matters of set-off under our Defalcation Act. It has been repeatedly held that a set-off is in substance a cross action, and a cross demand must be complete when the action was instituted. A cause of action incomplete at the impetration of the writ is not available as a set-off: Huling v. Hugg, 1 W. & S., 418; Pennell v. Grubb, 13 Pa. St., 552; Smith v. Ewer, 22 Id., 116 ; Speers v. Sterrett, 29 Id., 192; Zuck v. McClure & Co., 98 Id., 541; Roig v. Tim, 103 Id., 115. Whatever damages plaintiffs in error may have sustained must have been done after the impetration of the writ, and not before the attachment was executed. When it was executed does not clearly appear, but it must have been some time between the date of issuance and the application to dissolve. In any event it was subsequent, in point of time, to the commencement of suit. At that time plaintiffs in error had no cause of action or cross demand. If they acquired any afterwards, by virtue of the unlawful seizure of their property, it is not a proper subject of set-off in this action.

It is contended, by the learned counsel for plaintiffs in error that the making and filing of the preliminary affidavit required by the statute was the first wrongful act, and that the damages which afterwards ensued are referable to that time. This position is more plausible than sound. It is well settled that no action lies to recover damages for the prosecution of a civil suit, however unfounded, where there has been no actual interference with either the person or property of the defendant: Muldoon v. Rickey, 103 Pa. St., 110, and cases there cited. It does not appear that any damage was done prior to the execution of the writ of attachment, and that as we have seen was subsequent to the commencement of the action. The condition of the bond, required by the Act, is that if plaintiff fails to prosecute his action with effect, and recover judgment against defendant, he shall pay the latter all legal costs and damages which he “may sustain by reason of the attachment. There can be no breach of the bond and consequent right of action until the attachment is dissolved by the court, or fails by reason of plaintiff's inability to sustain his claim ; and until a cause of action arises there can be no right of set-off.

Our attention has been called to the. fact that the same or similar question has been ruled otherwise in one of our sister states. While the authorities referred to are entitled to great weight, we think the view we have adopted is more consonant with reason, and at the same time in harmony with our own decisions.

Judgment affirmed.