Page:Federal Reporter, 1st Series, Volume 7.djvu/826

 8 le ItEKSBAIi BEFOBTEB. �the defendant^ as 'befng wrongful, as provided in section 159, and the plaintiff shoald also obtain judgment in the action, the defendant could not recover the expenses incurred on the attachment otherwise than by an action on the under- taking as a part of the damages sustained by reason of the attachment. But when, as in this case, the plaintiff in the action fails to obtain judgment, and the attachment also fails, and is ^rma/aci« wrongful, the defendant, being enti- tled to judgment for costs and disbursements in the action, may include therein the disbursements made on account of the attachment, unless objection is made to the taxation; when the wrongfolness of the attachment may be controverted by the plaintiff by showing that, notwithstanding the failure to obtain judgment, there was good ground for issuing the attachment, and the court will pass upon the question and allow or disallow the taxation of these disbursements accord- ingly. Drake on Attachments, § 170. �With this brief reference to the provisions of the Code bearing on the subject, and their operation, we will consider the effeot'Of section lei, supra, as applied to this case. The supreme court of the state has not passed upon the question, and this court, for the present, must decide it for itself. Gounsel for the defendants contend that the parties to the nndertaking are not bound to pay "all costs that may be adjudged to the defendant" in the action generally, but only such as are so adjudged by reason of the attachment; while the argument of the plaintiff is that the ■ statute expressly gives the right to recover all costs adjudged when the plain- tiff fails in the action, thereby making the nndertaking in such case a security for costs. In my judgment the parties to the imdertaking iricur two distinct obligations — (1) To pay all costs and disbursements that may be adjudged to the defendant — ^not including all disbursements which he may incur by reason of the attachment or action, but only such as the court in' which the action is tried shall determine he is entitled to; and (2) to pay all damages that the defendant may sustain by reason of the attachment, if the same be wrongful, and this includes expenses incurred by reason of a ��� �