, :" '.,' ," ",I _'.
services aCtually by the attorney.' Where itlte' judgment is obtained without opposition oJ? the part'of the debtor, as is often the case, the fee should be lesa than where it is opposition. But after all' right Of obtained the parties, in the absence of any statute to the contrary, ,to contract for the payment of a reasonable attorney fee by the debtor, in case his creditot is put to the expense of collecting his debt by law, rests upontlle"saJ;lle ground as the right to make any other contract not prohibited by law or contra bonos
Assuming, then, what has not been questioned, and upon which I express no opinion, that $100 is no more than: a reaBonable fee in each of these cases, the stipullltion is both just and valid, and therefore ought to, be enforce,d. There' must be j udgment accordingly.
Go, Adm'r, etc., v.
Jus: and others.
(Circuit Oourt, D. Oregon. Murcb 18, 1881.)
1. SURETIES IN A1'l' UNDERTAKING FOR
AN ATTACHMENT""-LIABILITY 011'. The sureties in an undertaking for an under the Oregon Civil Code, f 144, in case the. plaintiff fails to obtain judgment in tbe action, are liable to tbedefendantfcir alrthe costs'and disbursements that may be adjudged 'to him, whether the latter are made in the action or upon the attachment.
John M. Gearin and Byron C. for plaintiff. John H. Woodward <t Charles H. WOOdward, for defendants.
DEADY, D. J. This actiol;'-, W(tS comlllenced in the circuit court for the county of Multnomah.' The defendants appeared and caused it to be removed' to this court. It is brought upon the undertaliing of the, defendants for an attachment given in the action of Ah Jim v. A1l. Kow, then the circuit court for the of Clatsop, in November, 1879. The complaint ,that in pursuance of said undertaking, and the affidavit of Ah Jim, a of attachment was issued in said action, upon which the prop-
erty Ah Kow w(!.s attached, at Astoria, consisting of five houses and a store"in which'he was then engaged in business as a Chinese merchant, whereby he was put to great expense and trouble, and his credit as a merchant injured to his damage $214; that on January 7, 1880, Ah Kow died, and the plaintiff herein, as the executor of his last will, was made defendant in said action, in which, on February 3, 1880, the defendant obtained a judgment against Ah Jim for the sum of $189.65, for costs and disbursements therein, and that execution thereon, against the property of Ah Jim, has been returned wholly unsatisfied; that in the defence of said aqtion the plaintiff herein was put 'to expense, in the emploY,went of interpreters and atporneys, to his damage, $3'75; and that said action malicious and without probable cause. 'The allegations concerning' the injury to the credit of the plaintiff's testator, arid incurred in the employment of attorneys, were on motion of the defendants stricken out' of the complaint as immatflrial. The defendants then pleaded in abatement of the action that an appeal!'hadbeen tal£enfrom.the judgl11ent,;of the Clatsop county agaipst Ah Jim, for costs and disbursements, to the supreme court, which was still pending; which plea, ,'on,the motion of the 'plaintiff, was stricken out as immat8fiaI, it not appearing therefrom· that any undertaking had , heengiven on sU<;lh appeal 'to stay thl7l proceedings ,and the :judgment. The then answered, denying the allegations of the complaint, except as to the jadgment for costs; and as to that, that it was for not more than $109.25, and the right of the plaintiff to sue as executor. The cause was submitted to the court for trial without the intervention of a jury, and it found that the attachment was aued out and levied as alleged, and that it was wrongful; that the plaintiff's testator was injured thereby in the sum Qf $75; and also that the plaintiff herein obtained judgment in said action against the defendant herein, Ah Jim, for his costs and disbursements, taxed at $144.25, and $2.45 accruing expense on the execution. The defendants contend that, as the attachment was only
. : . t··. ,.'
·BING GEE V. All .JUl·
.ancillary .to the action, they are not liable at all for costs, and only for such expensell as were on account of the attachment. On the contrary, the plaintiff insists that under the statute he is entitled to recover the costs and disbursements adjudged to him in the former action, whether on account of the action itself or the attachment therein. In support of his position, counsel for defendants cites Norton v. Cctmmach, 10 La. An. lO,in which it was held that a surety on a sequestration bond is only liable for such expenses as are incident to the sequestration and release; and White v. Wyley, 17 Ala. 167, cited in Drake on Attachments, § 176, to the same effect. But the stattuteaunder which these rulings were made are: not given. I suppose they are similar to those in many of the states in which the liability of the obligors in a bond or undertaking :for an attachment for both costs and .damages depends. alike upon the fact· that they are the result of the attachment ; and iWhere is merely ancillary, of course it does not 'include. such as are <simply the·result of the action. But such is. not. the lan,guage of the statute of this state.Seetaon ,144 ,0Ube O:l:egon .Civil Code provides the plaintiff in allalltioD. l·before .procuring a writ of attaohm:ent to issue, shall an undertaking, with: one or mO.lle,suretiea, "to the effect that the plaintiff will pay all that may be llidjudged to the .defendant, and all damages which; he may. suata.in by reason of the attachment, if the same be wrongful: and withoutsuifieient cause, not exceeding the sum specified in theundertaking." "Costs," as used in this section, only includes an allowance for attorney fees; but a party entitled to "costs" is also entitled to disbursements. Or. Civ. Code, §§ 538-48. .·N 0 provision is made in the Code for an allowance of costs upon an attachment as distinguished from the action in which the writ issues, nor can disbursements be allowed or recovered except by a party entitled to costs. Neither is there any provision authorizing the taxation and recovery of disbursements upon an attachment before, or otherwise, than upon the final judgment in the action, and therefore if the attachment should be discharged, upon the application of
the defendant, as Ibeirigwtongful, as provided in section 159, and the plaintiffsbould also obtain, judgment in the action, the defendant could not recover the expenses incurred on the attachment otherwise than by an action on the undertaking as a part of the damages sustained by reason of the attachment. But when, as in this case, the plaintiff in the action fails to obtain judgment, and the attachment also fails, and is prima facie' wrongful; the defendant, being entitled to judgment for costs and disbursements in the action, may include therein the disbursements made on account of the attachment, unless objection is made to the taxation; when the wrongfulness of the attachment may be controverted by the plaintiff by showing that, notwithstanding the failure to obtain judgment, there was good ground for issuing the attachment, and the court will pass upon the question and allow 01' disallow the taxation of these disbursements accord. ingly. Drake on Attachments, § 170. With this brief reference to the provisions of the Code bearing on the subject, and their operation, we will consider the effMt'of section 144, Bupra, as applied to this case. The supremeeourt of the state has not passed 'upon the question, and this court, for the present, must decide it for itself. Counsel for the defendants contend that the parties to the undertaking are not bound to pa.y "all costs that may be adjudged to the dE\fendant" in the action generally, but only such as are so adjudged by reason of the attachment; while the argument of the plaintiff is that the· statute expressly gives the right to recover aU costs adjudged when the plaintiff fails in the action, thereby making the undertaking in such case 8i8ecurity for costs. In my judgment the parties , to the undertaking incur two distinctobligations-(l) To pay all casts and disbursements that may be adjudged to the defendant-notinc1uding all disbursements which he may incur by reason of the a.ttachment or aCtion, but only such 'aathe court in rwhich the actio n is tried shall determine he is entitled to ;a.nd (2) to pay all damages that the defendant may sustain by reason of the attachment, if the same be wrongful, and this includes illxpens6s incurred by reason of a
lllNG GEE V. AD:
wrongful attachment, even where the plaintiff prevails in the action. Of course this conclusion makes the undertaking for an attachment a securit)'. for costs in the action where the plaintiff fails to obtain judgment therein, but it is not apparent why this result ought to prevent' the court from giving the statute effect according to its language and Prot. g,ble purpose. Indeed, this provision. may he considered as a wholesome restraint upon the proceeding by attachment in aid of a doubtful claim. The New York Code, § 230, ,provides that the undertaking for an attaohment should be to the effect "that if the defendant recover judgment, or the attachment be set aside by the order of the court, the plaintiff will pay all costs that ma.y be awarded to the defendant, and all damages 'which he may sustain by reason of the attachment:.. In other WOMS, if the plaintiff fail in his action the parties to the undertak· ing must pay the costs thereot The, statute of Tennessee is also similar in this particular to that: dt Oregon, but I have not found any deoision nnder either it or the New York one on this questl'On. It provides that'the sureties shall satisfy "all costs which shall be awarded to the defendant 'in case the plaintiff shall be cast in his suit, and also all damages which shall be recol'ered against the plaintiff · · · for wrongfully suing out the attachment." Drake on Attach· menta, § 1,70. The plaintiff in this action is entitled to recover the sum of $146.70, the costs and disbursements adjudged to him in the former action, and also the sum of $75, the damages sustained by his testator by reason of the attachment in said action,-in all, $221.70,-and there will be: findings accord· ingly.
WOOSTER 'V. BLA.KE
(Circuit Court, 8. D. NeuJ YQrk.
1. EQUITY PBACTJCJll-RULE 34.
Rule 34 of the rules ()f practice prescribed by the supreme court for the courts of equity of the United States, requires that on ruling a plea the defendant shall be allowed to answer; that leave must be given to it.
III Equity. F. H. Betts, for complainant. W. H. L. Lee, for pefendants. BLATCHFORD, C. J. The company is willing to have its plea That,is all the, plaintiff ca;n ask. But 34 requires that on overruling a plea the deferiq.a:nt shall be allowed to answer; that leave must be given to, it. A preliminary injunction will be issued against ,the other defendants on the claims of the Robjohn patent, which was adjudicated upon in the decision; but if such an injunction is asked for against the company, it must be moved for on papers and notice. An order will be settled on notice.
CLARK 'V. BEECHER MANUF'a Co.
(Oircuit Court, D. Connecticut. 1.
February 15, 1881.)
Letters patent No. 66,130, granted James B. Clark, Jttne 25,1867. for improvement in b18nks for 'carriage-thill shackles, held, not infringed by devices manufactured under letters patent No. 106,225. granted August 9, 1870, to Willis B. Smith, for dies for forging carriage shackle blanks. Complainant's invention, consisting of blanks for earr:a,2;e-thUl shackles and dies for making same, whereby the shackle is primarily formed with a curve on its central body portion, so that the SUbsequent straightening of the central portion and finishing of the blank forcelJ the surplus metal to the corners to fill up the deficiency in them and make them sharply-defined right angles, held, not infringed by defend-