Plunkett v. Sauer

Mr. Justice Green delivered the opinion of the court, November 20th 1882. We think the learned court below was in error in rejecting the defendants’ offer of proof. In the proceeding by attachment [358] the plaintiff was obliged to, and did, give a bond conditioned for the payment to the defendant of all legal costs and damages which he might sustain by reason of the attachment, if the plaintiff failed to prosecute the attachment with effect. After the giving of the bond in the attachment proceeding, the seizure of the defendant’s goods was not a tort, but a perfectly lawful act. If any damages resulted therefrom to the defendant, the plaintiff was bound by his contract, to wit, the bond, to pay the amount thereof to the defendant. The defendant in order to recover those damages would necessarily be obliged to bring an action on the bond for that purpose, if the plaintiff refused to pay them voluntarily. This being so, it is perfectly clear that his right of action against the plaintiff is not fox-damages for a trespass, but damages for breach of the condition of the bond. This right is ex contractu and not ex delicto. While it is true.the damages are unliquidated, they are capable of liquidation by proof, and therefore, the right to set them off in this action comes clearly within the adjudicated cases. The whole subject of the right of set-off in such cases was exhaustively reviewed by the present Chief Justice in the case of Hunt v. Gilmore, 9 P. F. S. 450, in which it was held that unliquidated damages arising ex conti-actu from any bax-gain, may be set-off tinder the Pennsylvania Defalcation Act, whenever they are capable of liquidation by any known legal standai-d. The same doctx-ine was x-epeated and applied in the cases of Halfpenny v. Bell, 1 Norr. 128, and The Domestic Sewing Machine Co. v. Saylor, 5 Norr. 287. The first assignment of error is sustained and on that the judgment is reversed; we say nothing about the second assignment because we do not know whether the question it involves was raised by any proper plea. Judgment reversed and venire de novo awarded. Plunkett v. Ihmsen. The opinion in the case of Plunkett v. Sauer disposes also of this case. For the reasons theis stated— The judgment is reversed, and a venire de novo awarded.