(concurring in part and dissenting in part). In an action to foreclose a lien upon personal property a warrant may be issued by the clerk of the court in which the action is commenced, before judgment, commanding the sheriff to seize and safely keep the property to abide the final judgment in the action. Comp. Laws 1913, § 8138. “Before issuing-the warrant the clerk must require a written undertaking on the part of the plaintiff with sufficient surety, to the effect that, if the defendant recovers judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of any seizure under the warrant, not exceeding the sum named in the undertaking.” Comp. Laws 1913, § 8140.
In this action plaintiff seeks to recover upon a bond given in an action to foreclose chattel mortgages and conditioned as required by § 8140, supra. It will be noted that the undertaking prescribed by § 8140, supra, is conditioned: First, that plaintiff will pay all costs that may be awarded to the defendant in a principal action; and, second, all damages which the defendant may sustain “by reason of any seizure under the warrant.” Manifestly the liability under, and the amount recoverable upon, the bond, is controlled by its provisions. In this case, it is undisputed that no proceedings were had, and- no services rendered by any attorneys, for the purpose of obtaining a release of the property seized under the warrant of seizure. All services performed by the attorneys retained by the defendant were performed in defining the foreclosure action. The seizure of the property under the warrant neither increased nor decreased the amount or value of such services. Whatever liability plaintiff incurred for attorneys’ fees was not occasioned or increased by the seizure of the property *446under the warrant. The rule established by the great weight of authority in the analogous cases of attachment bonds is that a party cannot (in absence of statutory provision to that effect) recover “as damages sustained by reason of the attachment,” attorneys’ fees expended or incurred in defending the principal action. Frost v. Jordan, 37 Minn. 544, 36 N. W. 713; Ames v. Chirurg, 152 Iowa, 278, 38 L.R.A.(N.S.) 120, 132 N. W. 427; Porter v. Knight, 63 Iowa, 365, 19 N. W. 282; McClure v. Renaker, 21 Ky. L. Rep. 360, 51 S. W. 317; Gonzales v. De Funiak Havana Tobacco Co. 41 Fla. 471, 26 So. 1012; McGill v. W. P. Fuller & Co. 45 Wash. 615, 88 Pac. 1038. This has been held to be true even though jurisdiction was obtained solely by attaching the property of a nonresident who subsequently appeared and defended in the action. Frost v. Jordan, supra; Gonzales v. De Funiak Havana Tobacco Co. 41 Fla. 471, 26 So. 1012. In my opinion the attorneys’ fees expended by the plaintiff in defending the foreclosure action do not constitute damages sustained “by reason of seizure under the warrant,” and such attorneys’ fees are not recoverable by the plaintiff in this action.
I therefore concur in so much of the opinion prepared hy Mr. Justice Bronson as orders a reversal of the judgment and order appealed from on the ground that the amount awarded to the plaintiff exceeds that stipulated for in the bond. I also concur in that portion which holds that the judgment obtained in the former action might properly be offset in this ease. But I dissent from that part of the opinion which holds that the attorneys’ fees expended in defending the foreclosure action may be recovered in this action.
Robinson, J., concurs.