The herald., 1894-06-22
Mr. cH|7TENDEA'S TROUBLES
Another Chapter in His Liti-
CATION With Mr.. TOlfree.
He Tries to Make His Nemesis Foot
the Bills.
Jadge Shaw Rules That He Cannot FoIst
the Expenses of the Attachment
Against Him Upon other
Shoulder.


vs. Woolacott, ct al, which practically
settled the case in a manner adverse to
the wishes of Chittenden. The case is
an outgrowth of the arrest OF Chitten-
den. charged by Mr.. Toliree with the
robbery OF his safe at a railroad eating
house on the Southern Pacific railroad.
This charge fell through, and then Toll
free sued Chittenden for the amount he
lost from his safe the night of the rob-
berry, and attached some $500 that Chit
tenden had on deposit in bank. This
case Tolfree also Loaf and Chittenden
brought the present suit against the
sureties on the attachment to get back
at his Nemesis, If he could do 80.
Judge Shaw filed an opinion in the
case. in the course of which he die
cussed come interesting points relative
to the law of attachments. In the
course OF it he says:
The action is upon an undertaking in
attachment given in an action by one
Tolfree against Chittenden, the present
plaintiff. The plaintiff alleges ae one OF
his grounds for damages that he was put
to great expense in preparing and max
ing his defense to the action in which
the attachment was issued, amounting
to more than $500. There being no alle-
CATION to the contrary, it will be pre-
sumed that the proceedings relating to
the attachment exclusively were in all
respects in due form and, upon the face
of the pspere, valid. 1t does not appear
that any direct attempt was made to set
do m nj oo h nar an1t
part thereof, and 80 it must be presumed
that there was no such attempt. In
deed, as l understand this part of the
complaint, the allegation is made upon
the theory that the attachment procsed-
ings were in all respects regular and
valid, except that Ohittenden, the de-
PENDANT therein, was not indebted to the
plaintiff Tolfree, and that the only
method by which Chittenden could de-
feat the attachment and release his
property from the levy was by answer
ing the main action and going to trial
upon the merits, and that ii he did this
for the purpose OF procuring such release
ne can hold the sureties in the under
taking responsible for all the expenses
OF the trial including the fees paid to
his attorneys for defending the action.
He could, OF course, have proceeded
under section 554 and 555. G. O. p, and
have obtained the release of his prop
erty by giving an undertaking for its
value as therein provided, and for the
costs and expenses OF such release he
could doubtless hold the sureties in the
undertaking for attachment liable in
case he defeated the plaintiff in the
main action. But the contention of the
plaintiff lie that this is not his only
remedy, and that he may, if he chooses,
suffer hiH property TO remain under at
tachmsnt and obtain it's release by
trial of the action upon the merits and
hold the suretiea responsible for tbs ex-
pense OF the release thus obtained.
think it must be admitted that ia
this state, II the complaint states q
proper cause of action, the defendant
cannot, in a direct attack on the attach
ment proceedings alone, procure a dis
solution OF the attach ment upon the
ground that the allegations OF the COM
plant are untrue. and that, in point Of
feet, the plaintiff hes no cause of action
as alleged. The code makes no provision
for such proceeding, unless it is con-
tanned in section 556. This section ia to
the effect that the defendant may apply
to have the writ discharged on this
ground that it was improperly or irreg-
ularly issued.'"
The court says further: "There il,
therefore, no way by which Chittenden
could have dissolved the attachments
by direct attack, nor otherwise than
indirectly by defence to the action on
the merits.
The question to be decided is. whether
or not the defendant in an action in
hi nh Of boz. D., h.
sued and levied can, after he RECEIVERS
judgment in the main action, sue the
sureties in the undertaking for attach
ment and recover OF them the expenses
he paid in making his defense to the &C.
ton in addition to the expenses oc-
casioned exclusively by the attachment.
'rhe condition of the undertaking is
that If the defendant recover jud .ment
the plaintiff will pay all costs that may
be awarded TO the defendant and all
damages which he may sustain by rea-
son of the attachment The part of the
complaint in question does not claim the
costs taxed in the action as an element
OF damages; and. therefore, the question
whether the costs mentioned in the
undertaking include all costs awarded
to the defendant in tho whole case, or
only such costs ss are awarded to him
by reason OF the attachment, does not
rise. The question concerns only the
expenses of making the defense exclu-
sive of taxed costs. The argument OF
the plaintiff here is. that, "a the attach
ment proceedings were regular he could
not remove the attachment from his
property except by defeating the
action on the merits, and that
having done this the expenses OF
his defense are to be considered
as a loss or damage sustained Shy reason
Of the attachment and therefore within
the conditions of the undertaking"
Upon this proposition the court sage
that there is Conflict OF authorities,
but the greater number of decisions are
against the plaintiff.
He cites number of authorities and
concludes by saying that in regard to
the loss to plaintiff by being deprived of
the use OF his money in the hands of
garnishee during the attachment suit,
the measure oil his damage ie in law the
legal interest on his money.
In 30 far as he may have suffered loss
by reason OF his property being taken or
kept from him, the value of it's use for
the time or any special loss will be- the
full measure OF the damages sustained
by reaeon of the attachment. The de-
tense was necessary if he would prevent
Judgment being taken against him.
1t should be deemed in law, as is
clearly true in fact, that the ex penses OF
trial on she merits are incurred
primarily to prevent the recovery of q
judgment and not to dissolve the at