. Fll:DERA:L REPORTU.
(Circuit Court, W. D. Penn8ylvania. June 1, 1888.)
WRITS-SERVICE OF PROCESS ON ABSENT DEFENDANTS IN SUITS IN REV. ST. U. S. 176.
The specific prayers ofthe bill 'being (1) for an account oflumber, etc., taken from demised premises; (2) for da\Dages for defendant's breaches of covenant; (8) for the appointment of a receivllr of demised premises, lumber, etc.,-held. that the suit was not one within the contemplation of the act which authorizes service upon non-resident defendants wherever found in suits "to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or, cloud upon, the title to real or personal property within the district where such suit is brought. ..
In Equity. Sur motion to rescind an order on an absent defendant to appear, plead, answer, or demur, and to strike off the 6ervice thereof. B. J. Reid, for complainant. J. O. Pa1'mlee, for defendant. ACHESON, J. The order of April 21, 1888, was made by me upon an pam application, supported by the plaintiff's affidavit, beyond which I did llottbenlook. That affidavit brought the case within the terms of the act of congress which authorizes such order and service where the suit is brought "to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought." Supp. Rev. St. U. S. p. 176; Rev. St.§ 738; But upon a careful examination of the bill, 1 am persuaded that the suit is not within the scope of the statute. 'fhe first prayer of the bill is for an account of the lumber, etc., taken by the defendant from the demised premises, and a decree against him for the balance due the plaintiff. The second prayer is for a decree in favor of the plaintiff for the damages he has sustained by reason of the defendant's breaches of covenant. These are the principal prayers, . and they disclose the substantial purpose of the suit. They involve, it is plain, only the personal rights and obligations of the parties. The third prayer of the bill, indeed, is for the appointment of a receiver, but this is an auxiliary remedy, invoked as an aid to the principal relief sought. As the bill now stands, :1 do not see how the suit can be re.garded as a proceeding in tem,within the contemplation of the act. Thia has been reached after consultation with Judge MCKENNAN, and with his concurrel1<le. And now, June 1. 1888, the order upon the defendant made April 21, 1888, that he appear, etc., is rescinded, and the service thereof upon him is set aside.
JACOBUS .,. KONONGAHEJ,.ANAT. BANK.
JACOBUS'tl. MONONGAHELA. NAT. BANK OF BROWNSVILLE.
Penn'ylMnia. March :.11, 1888.)
ATTACHMENT-WRONGFUL ATTACHMENT-DAMAGES-Loss OF INTEREST.
The loss of interest uccasioned by an attachment wrongfully laid is clearly an injury for which damages are recoverable against the wrong-doer.
Where shares of corporation stock are attached. the subsequently declared dividends are as much bound by the attachment as the Cfn'pU8 of the stock itself is.
8AME-WRONGFUL ATTACHMENT-OOUNSEL FEES.
Oounsel fees and other expenses (not taxable as costs) paid or incurred in defending against an attachment wrongfully laid are not recoverable as dam-. ages in an action upon a statutory recognizance given when the attachment was issued, conditioned for the eayment to the party aggrieved of" such damagel! as the court may adjudge. .
of Damages on Attachment Bond. In pursuance of written stipulation this case was .tried .by the court without the intervention of a jury. The following facts, therefore) are the court: (1) On July 17) 1878, the Monongahela National found Bank of Brownsville) the defendant here, upon a judgment for 39)056 recovered by it in this court against Alfred Patterson. caused an exeoution attachment to be issued out of this court, and by virtue thereof) on the 18th of the same month) caused to be attached, as the property of Patterson, 264 shares of the capital stock of the Fayette County Railroad Com pany) of the value of $60 a share, standing in the name of Samuel H. Jacobus, the plaintiff here; which stock, in fact, belonged toJa<::obus. (2) Before issuing the attachment the bank entered into and filed (conformably to the thirty-second section of the act ofassembly of June 16) 1836,) a recognizance conditioned for "the payment of such damages as the court may adjudge, to the party to whom such stock shall really belong) in case such stock should not be the property of the defendant." (3) Jacobus and the railroad. company, having been summoned as garnishees, appeared; and 011 September 30, 1878) the former pleaded nulla bona, and October 31, 1878, the latter pleaded in substance that the attached stock belonged to Jacobus, and not to Patterson. Upon a trial by jury there was a verdict) on .May 13, 1880, in favor of the garnishees; and on MI\Y 17) 1880, the court entered judgment for them on .the verdict. On July 2, 1880) the. bank sued out a writ of error) by virtue whereof aU proceedings in said attachment were removed into the supreme· court of the United States; which court. on November 19,1883, affirmed the said judgment. (4) There was in the hands of the railroad company at the time process was served a dividend of $264 on said stock; and between July 18, 1878, and November 19, 1883) 21 dividelldsof $264 each were declared by the said company on said stock, the first thereof on October 10,1878, and the others every three months thereafter. ,All said dividenrls were retained by the railroad company until after the. affirmance oCthE! judgment by the supreme court, when they were. paid to Jacobus, but withuut interest._ (5) Indl;lfending againat-llaid·attach,.