
    PORTO RICO BREWING COMPANY, Plff., v. NATIONAL SURETY COMPANY, Dft.
    San Juan,
    Law,
    No. 950.
    On Motiow for a Nonsuit at Close of Plaintiff’s Case.
    Attachment Bond — Damages Recoverable.
    1. Under an attachment bond conditioned that “plaintiff shall pay ... all damages which the said defendant may sustain by reason of the attachment,” the successful defendant may recover the amount of attorneys’ fees expended in connection with the attachment. If the defendant employed counsel generally for the ■whole suit, the court may apportion the amount of the fee which should be paid for the services in connection with the attachment.
    Jurisdictional Amount — Suit on Attachment Bond.
    2. A suit in this court on an attachment bond is ancillary to the principal suit in which the bond was given, and will not be dismissed because the evidence shows that the damages sustained ■by plaintiff, defendant in the principal suit, were less than $1,000.
    Opinions filed May 11, 1915.
    
      Mr. Paul Charlton for plaintiff.
    
      Mr. Franlc Martinez for defendant.
   HamiltoN, Judge,

delivered the following opinion:

In this suit the plaintiff introduced its evidence and rested. The defendant thereupon moved for an involuntary nonsuit to be entered upon several grounds: First, that tbe plaintiff bad proved no damages at all; second, tbat tbe attorney’s fee under tbe bond in question is limited to tbe attachment, and no special services bave been proved in regard to tbe attachment. In tbe third place, as I understand it, tbat tbe amount sued for is shown by tbe plaintiff’s own evidence to be $800, and tbat tbat is below tbe jurisdictional amount fixed by tbe amendment of 1901 to the Foraker act with reference to this court.

1. As to tbe first ground tbat no damages at all bave been shown, tbe court will overrule tbe motion. In tbe subsequent discussion it has developed that damages bave been prima facie shown.

2. Tbe second ground tbat the attorney’s fee is not covered by tbe bond deserves further consideration. Tbe bond reads as follows: “Now, tbe condition of this obligation is such tbat in case tbe defendant recovers judgment, tbe plaintiff shall pay all costs tbat may be warranted to said defendant, and all damages which tbe said defendant may sustain by reason of tbe attachment, not exceeding tbe penalty of this bond,” which is $20,000, this bond being dated, approved, and filed on June 4, 1912, in tbe case of Huetteman & Cramer Company, plaintiff, versus Porto Pico Brewing Company, defendant, No. 888, law. Tbe rule is general that tbe sureties in a bond are limited to precisely what they agree to in tbe bond. Tbe written instrument has no intendments against tbe sureties executing it, but it is of course to be fairly construed so as to get at tbe meaning of tbe parties, like any other contract. Now this bond says expressly tbat it is limited to the damages which tbe defendant may sustain by reason of tbe attachment. Tbe argument is tbat tbe attachment and tbe main suit were filed practically at tbe same time, I believe on tbe same day, and that tbe damages caused were practically caused at tbe same time and in tbe same manner. It is shown that tbe agreement between tbe plaintiff in tbis case and its attorney was for a thousand dollars, but that when tbe main case, No. 888, was dismissed, tbis fee was, by agreement, abated to $800, which has been paid. Tbe evidence has not shown any distinction between services in the main case, as I will call it, No. 888, and tbe attachment which was a part of tbe main case. Tbe court, however, is able to discriminate. Tbe court knows what an attachment is, and knows tbe relative importance of different parts of a suit; and I think that the court would be competent to apportion between the different parts of tbe suit that which is necessary. Tbe court understands tbe law to be — no cases have been cited to tbe contrary — that tbe bond is limited to whatever is suffered by reason of tbe attachment ; that it is not to be extended to all tbe services in tbe case. For instance, in tbis case, just for example, if there were certain proceedings taken in connection with tbe bond, motions to quash, different motions connected with tbe bond, $500 worth of service in that connection, and $500 worth of service in tbe case outside of tbe attachment, the opinion of tbe court is that it would render a judgment for $500 on tbis attachment, but it would not add up all tbe services in tbe case and tax them up against tbe attachment bond. So tbe court does not think that point is well taken. As to what would be tbe apportionment in tbis case it is not necessary to determine, but possibly it will have to be determined later. Tbe court thinks there is enough before it to come to some decision in the case.

3. Tbe third point, and a very interesting one, is as to whether there is anything at all recoverable in tbis suit on jurisdic-tionál grounds. Here is a suit for at least a thousand dollars, and the evidence shows nothing except as to one branch of the claim, that is, the attorney’s fee, and it shows that, before this suit was brought, the thousand dollars was reduced by agreement to $800. The plaintiff could not sue for a thousand dollars and then recover less on the idea that the proof has not come up to his allegation, because he must know from the beginning that there never was any suit to collect for a thousand dollars. To the court’s mind, then, in order to get at the point in the case, the evidence shows that this suit ought to have been brought for $800, putting it in the extreme form. Now assuming that to be a fact and under the evidence that this suit ought to have been brought for $800, would that oust the jurisdiction of the court ? It would, of course, in ordinary cases. The court could not entertain a suit on its face for less than the jurisdictional amount. The point arises, however, when a bond has been given in a proceeding in this court, that has been approved by the court and is binding between the parties, and in fact is sued on by one of the parties in this very proceeding, will the court consider the bond as a foreign transaction that has nothing to do with the case, and malee the parties go to another forum to recover on what has been taken and filed and approved in this court as a part of this proceeding? If that is so, it would be devesting this court of half the power that it ought to have, at all events, and I do not think that the law is that way. I think that following the principle mentioned in Files v. Davis, 118 Fed. 465, the attachment bond and its remedies, — and of course the same principle would apply to other bonds, — is practically a part of the jurisdiction of this court. It has been acted on in other cases as to criminal bonds, where an appearance bond is given for the appearance of a prisoner and be does not appear, and tbe bond is forfeited. The court sees no difference in principle between that and the case at bar. There is a difference in form because here the suit is docketed separately, but the transaction is substantially the same. The nature of the two claims is substantially the same, and it would seem to be correctly expressed in Files v. Davis, decided by Trieber, District Judge of Arkansas. The drawback to the general value of that particular case is that it is decided under the Arkansas statute. Under the attachment laws of the state of Arkansas the court goes on to say that so and so can be done, and goes on to say what should or should not be necessary under that statute. “This proceeding may therefore be properly treated as ancillary to the original attachment suit, and is clearly within the rule established in this circuit by Mr. Justice Brewer while circuit judge, in Patterson v. Mater (C. C.) 26 Fed. 31.” The case of Lamb v. Ewing, 4 C. C. A. 320, 12 U. S. App. 11, 54 Fed. 269, does in so many words adopt the principle regardless of the local statute of Arkansas. So it seems to the court that, on principle as above discussed, the suit should lie, and it seems to be* backed up by authority, so I will take that view of the case and overrule the motion.

ON Final Deteemination of The Case.

Mr. Paul Oharlton for plaintiff.

Mr. Frank Martinez for defendant.

HamiltoN, Judge, delivered tbe following opinion May 11, 1915:

It seems to me that there are one or two things to be taken into account. The original agreement was a thousand dollars attorney’s fee for the whole case. Considering that the case was not fought out in the usual way of cases, the parties concerned in the fee agreed to a certain reduction, to $800, so that would be the basis to start on. That much was the fee in the case. Now, how much can he apportioned between the services in the main case and the attachment feature of it? It is difficult to separate the two and yet it seems to me that I shall have to do it.

A very substantial part of the work was in connection with the attachment itself, as always happens in an attachment suit. In this case there is not the feature of a trial, examining witnesses, etc., in the main suit, so that it seems to me that I shall have to get at it, as I said, by an approximation. I think it is about right, like Solomon, to divide the claim in two; considering half of it as in the main suit and half in the attachment. A judgment will be entered for $400.  