Selheimer v. Elder

98 Pa. 154 | Pa. | 1881

Mr. Justice Paxson

delivered the opinion of the court,

This record presents a number of questions that need not be discussed. The case turns upon the point raised by the second assignment of error, viz.: That the fund in dispute is not the' subject of attachment.

The fund sought to be reached by the attachment was a claim by George Saylor against the Sunbury & Lewistown Railroad Company for entering upon and taking a portion of his land for railroad purposes. The company entered and took the land without any agreement with Savior as to the price, and without having filed a bond as required by Act of Assembly.

We are of opinion that this claim is of such an uncertain and speculative character that it does not come within our attachment laws. There was no contract relation between Saylor and the railroad company ; on the contrary, the claim is for unliquidated damages for a tortious act. Such a claim has never been held to come within the attachment laws. It was said by Thompson, J., in Girard Fire Ins. Co. v. Field, 9 Wright 133: “We cannot come to the conclusion that every unliquidated claim is without the reach of attachment process. The reason for the exception has sufficient ground to operate on in the exclusion from it of such claims as are contingent, and such as possess no fixed standard for liquidation like torts or damages for breach of contract. . . . They want tangibility, and are not .attachable, nor would they be the foundation for the process.” Even when the claim arises from a breach of contract it cannot be attached unless the damages can be reduced to certainty by a definite standard ; nor where they are speculative or incapable of being ascertained by a fixed standard : Carland v. Cunningham, 1 Wr. 228.

In the case in hand there is no. fixed standard by which the damages can be liquidated. They are purely speculative. There are a large number of questions to be taken into consideration in ascertaining the damages in such cases which will readily suggest themselves to the professional mind. Moreover the damages could not be liquidated in this proceeding. The attaching creditor could not try the question of the damage to Saylor in his attachment suit. Such damages can only be assessed in the manner designated by the Act of Assembly. The attaching creditor has no standing to petition for a jury. The owner of the land might not do so. He has his remedy by ejectment, and may prefer to pursue it.

It was said, however, that the attachment bound after the damages had been liquidated by the award of the jury. The obvious answer to this proposition is that Saylor assigned his claim to Selheimer before the award.

We need not pursue the subject further. It is top plain.

Judgment reversed and a venire facias de novo awarded.