Jacobus v. Monongahela Nat. Bank

35 F. 395 | U.S. Circuit Court for the District of Western Pennsylvania | 1888

Acheson, J.,

(after stating the facts as above.) The loss of interest occasioned by an attachment wrongfully laid is clearly an injury for which damages are recoverable against the wrongful litigant. Irwin v. Railroad Co., 43 Pa. St. 488; Oelrichs v. Spain, 15 Wall. 211, 230. But the defendant’s counsel contend that the dividends declared after the filing of the pleas in the attachment suit were not subject to the attachment; and in support of this view they cite the case of Banners v. Buckingham, 5 Phila. 68, in which it is said that whatever comes into the hands of a garnishee in an execution attachment, after nulla bona pleaded, cannot be given in evidence at. the trial of the issue. Whether this is consistent with the decision of the' supreme court of Pennsylvania in Sheetz v. Hobensack, 20 Pa. St. 413, that the garnishee in an execution attachment is liable for moneys of the defendant debtor coming into his hands after service of the writ, need not now be considered. The doctrine declared in Benners v. Buckingham, if correct, has no application here. This was not the case of a distinct and independent fund coming into the garnishee’s possession after plea filed. The dividends were but an incident .to the stock,—the mere fruits thereof,—and were as much within the grasp of the attachment as the corpus of the stock was. It has been adjudged that an execution attachment becomes a lien on the debtor’s stock from the date of the service on the corporation; and upon a judgment therein, and a sheriff’s sale, the purchaser of the stock takes the judgment debtor’s title as of the date when the attachment was served. Geyer v. Insurance Co., 3 Pittsb. R. 41. The defendant’s counsel further contend that, as the judgment upon which the attachment issued was less in amount than the value of the stock, Jacobus had the right to demand and enforce payment of the dividends, notwithstanding the pendency of the attachment; or, at any rate, that the railroad company by withholding the dividends became liable to payinterest thereon to Jacobus.. But I am of opinion that this case is not within the principle that a garnishee is not justified in withholding from his creditor more than is sufficient to indemnify him from the attachment. The railroad company was not bound to take the risk of a decline in the value of the stock, and the dividends never reached anything like the amount of the judgment.' Besides, under the ruling in Geyer v. Insurance Co., supra, had the attachment here proceeded to judgmenit, execution, and sale, the dividends, as an incident of the stock, would have passed to the purchaser.. If the banjc was satisfied with the security of the stock itself, and desired to lessen the risk of litigation, it was its business to release the dividends from the lien of the attachment. It follows, therefore, from what has been said, that the plaintiff is justly entitled to recover in this action the amount claimed by him for lost interest.

But can the plaintiff recover for his counsel fees and other expenditures in the attachment suit? This question, under the decisions of the supreme court of the United States, must, I think, be answered negatively. Arcambel v. Wiseman, 3 Dall. 306; The Nuestra Senora De Regla, 17 Wall. 29. In a suit on an injunction bond, which bears a close analogy to the present action, that court held that counsel fees expended in getting rid of the injunction were not allowable as part of the damages. Odrichs v. Spain, supra. It is to be observed that the statutory recognizance is not the foundation of the right of action for the wrongful attachment of stock. It is intended as a security for the payment of damages. The condition thereof is for the payment of “such damages as the court may adjudge.” This. I apprehend, moans such damages as are legally recoverable. Now, in an action against the marshal for an illegal levy on teas, it was held by Judge Baldwin that the plaintiff was not entitled to recover money paid counsel, or other expenses incurred in prosecuting the suit. Insurance Co. v. Conard, Baldw. 138. And upon this question the decisions of the supreme court of Pennsylvania are in harmony with those of the federal courts. Good v. Mylin, 8 Pa. St. 51; Haverstick v. Gas Co., 29 Pa. St. 254; Stopp v. Smith, 71 Pa. St. 285. Those cases hold that the plaintiff, whether suing in tort or contract, cannot recover in damages for counsel fees or other expenses (not taxable as costs) paid or incurred in establishing bis right.

And now, to-wit, March 31,1888, upon the facts found, and in accordance with the views expressed in the foregoing opinion, the court finds in favor of the plaintiff, and that as and for his damages he recover of the defendant the sum of $1,201.65.