
    HIBBERD vs. GOULD.
    In a trial of a suit commenced by attachment under the Act of 1869> a claim for unliquidated damages for issuing the attachment cannot be set off against plaintiff’s claim.
    Error to Common Pleas No. 1 of Philadelphia County, No. 18 January Term, 1881.
    J. Gould’s Sons issued an attachment against Hibberd & Co. under the Act of March 17, 1869, and gave a bond in the sum of $730. The attachment was dissolved by the Court upon failure to prove fraud. The plaintiff then filed a copy of the book entries upon which the claim was founded, amounting to $363.17. Wm. Hibberd filed an affidavit of defense as follows : -'‘The attachment in the above cause was issued by the plaintiffs without any legal cause whatever, as shown by the depositions taken, and said attachment was, upon hearing, dissolved by the Court. By reason of said attachment, defendants have suffered loss and damage exceeding the amount of the plaintiff’s claim in the above case, and which claim for loss and damage the defendants have, as they are advised, a right to enforce against the plaintiffs and their surety by an action of debt upon the bond given by them and filed in this cause. That said loss and damage occurred to defendants by having their business interrupted by said attachment, and having part of the property used in their business taken away from them by the Sheriff under said attachment and retained for some time, and by causing the creditors of defendants to bring suits against them, harassing them in their business and destroying their credit, causing them to be compelled to sell their goods at a sacrifice to enable them to pay their creditors.” The court granted judgment for want of sufficient affidavit of defense. Hibberd then took a writ of error claiming the right to set off damages occasioned by the attachment which were secured by the bond filed.
    
      John H. Sloan, Esq., for plaintiff in error,
    cited, Hollister vs. Davis, 54 Pa., 508; Nickle vs. Baldwin, 4 W. & S., 290; Halfpenny vs. Bell, 82 Pa., 128; Machine Co. vs. Saylor, 86 Pa., 291.
    
      J. W. Roper, Esq., contra,
    
    argued that damages arising from an independent tort cannot be sett off in an action on a contract; Dunlap vs. Spear, 3 Binney, 169, Goyel vs. Jacoby, 5 S. & R., 117. Remote or speculative damages incapable of liquidation cannot be set off; Sitgreaves vs. Griffiths, 2 W. N. C., 707; Adams Ex. Co. vs. Egbert, 36 Pa., 360; Fleming vs. Beck, 48 Pa., 313; Fissler vs. Love, 48 Pa., 410; Regers vs. Bemus, 69 Pa., 433.
   The Supreme Court affirmed the judgment of the Common Pleas on January 24, 1881, in the following opinion :

Per Curiam.

It is perfectly clear that the damages resulting from the attachment did not accrue until after the commencement of the action. The action was commenced by the attachment, and it would be a very strange thing to allow to be set off in the action, the alleged wrong of the process by which it was commenced. It was altogether a claim for unliquidated damages, susceptible of no legal measure, and the fact that it was secured by the bond of indemnity did not so alter its character as to allow it to be interposed as a set off under the defalcation act.

Judgment affirmed.  