Adam Bros. v. Gomila & Co.

*481 Dissenting Opinion. Bermudez, C. J. The bond on which this suit is brought was furnished in an attachment proceeding against non-residents, under which their property, a chartered vessel, was seized. The seizure was released on the execution of the bond required by law. The proceedings for the writ were regular on their face and no rule could be taken for the dissolution of the order. The bond furnished by the defendants in the suit merely released the seizure of the vessel. It did not dissolve the order on which the writ was issued, which continued in force until it wan actually dissolved by the judgment on the merits. Had the release bond proved insufficient and none other substituted, the attaching creditors could, without obtaining any new order, have had any other property of the absent debtors seized. The bond famished to obtain the release represented, if not the property itself, as a forthcoming or delivery bond does, at least the value of it. The surety on such bond was responsible for the amount of the judgment, should any be rendered in favor of plaintiffs, up to the value of the vessel released. The attachment not being dissolved by the bonding of the property, could not be dissolved otherwise than by a judgment on the merits of the case, as the proceedings were regular on their face and could not have been set aside by rule previous to final judgment. In injunction cases, where the commission of the prohibited act would not work irreparable injury, the effect of the injunction may be suspended on giving bond, but the defendant is not on that account debarred from taking proper proceeding-for dissolving the order for the writ on the face of the papers; or if this.cannot be done, from doing so by trial of the merits. The rule is the same in attachment cases. 13 Ann. 526, 550; 22 Ann. 146, 335; 21 Ann. 349. The value of the services of counsel should therefore be fixed at what the services for defending the suit would be worth. It is indifferent to the defendants that two counsel were not employed, one to dissolve the writ, another to resist the claim. The authorities invoked by the defendant to resist the allowance of such fees, can have little or no bearing on the issue, as the rulings were made in cases in which the seizure, attachment, sequestration or *482 provisional seizure appears to have been set aside before trial, on the merits. Those relied on by the plaintiff for the recovery of the fees, appear to be in point and to entitle them to the same. Frank & Co. vs. Chaffe, 34 Ann. 1203; British Navigation Company vs. Sibley, 27 Ann. 191; White vs. Givens, 29 Ann. 572. In Brandon vs. Allen & Co. 28 Ann. 60, in which the attachment executed on property of a non-resident, had not been dissolved on rule, the court, on a suit for damages on the bond furnished to obtain the writ, allowed the counsel fees, paid for defending the suit on its merits, saying of the defendant that his property had been illegally attached, that to get rid of the attachment he had to employ counsel; that the fee which his counsel earned, and which he was obliged to pay, was a damage to him. The court allowed the fee claimed which was ¡§1800.