McMillan v. Dana

Baldwin, J. delivered the opinion of the Court Cope, J. concurring. The plaintiff brought suit upon this undertaking. “ Robert McMillan v. Garret N. Vischer. “ Whereas, the above named plaintiff has commenced an action in the aforesaid Court against the above named defendant for the recovery of six thousand four hundred dollars, and whereas an attachment was duly issued and served, as will more fully appear by the Sheriff’s return on the process in said case. " Now, therefore, we the undersigned residents of the city and county of San Francisco, in consideration of the premises, and in consideration of the release from attachment of the property attached as.above mentioned, do hereby jointly and severally undertake in the -sum of twelve thousand and eight hundred dollars, and promise to the effect that if the plaintiff shall recover judgment in such action, we will pay to the plaintiff, upon demand, the amount [347] of said judgment, together with the costs, not exceeding in all the said sum of twelve thousand eight hundred dollars. Dated at San Francisco this eighth day of December, 1857. (Signed) Wm. A. Dana, Ira P. Rankin.” The complaint avers that after the execution and approval by the Court of this paper, and in consequence and consideration of such undertaking, the said property and moneys so attached were released from said attachment, “as by the order of said Court,made by the Judge thereof, and filed in said Court.” The order of the Court is set out, which releases and discharges the property attached from the attachment. The Court on the trial granted a nonsuit, upon the ground, it seems, that there was no averment in the complaint that the property attached was actually released and delivered to the defendant. The undertaking has the same effect, and is to be construed in the same way as if it were a bond making the same recitals. The mere fact that the statute does not require a seal to the paper evidencing the obligation in this class of instruments, does not require us to give them a different character or construction from those executed under the old practice, which were technically writings obligatory. The recitals are conclusive of the facts stated. They show a consideration for the promise, and the obligation of the parties upon that consideration. In the present instance, the defendants promise, in consideration of the release of the property from the attachment, that in the event of a recovery of the judgment by the plaintiff, they will pay the amount of the judgment. The complaint avers that this property was released by order of the Judge,, and the order of release is set out. The object of giving the undertaking was to procure this release, and this release was hadt in consequence of the undertaking; and the consideration of the-undertaking therefore is the release so procured. In consideration, of this release, the obligors agree to pay the judgment. Whether, the property was redelivered to Yischer or not, was wholly immaterial. The plaintiff in attachment, after the giving of the ¡undertaking and the order of the Judge, had no further, claim,on,- itv, [348] Nor does it matter whether the property was subject to attachment or not. That matter cannot be tried in this collateral way. It is enough that the plaintiff had this property levied on as subject to his debt, and that these sureties procured its release upon the stipulation that, in consideration of such release, they would pay the amount of the judgment to be recovered by the plaintiff in the attachment'suit. Nor was any proof necessary of the preliminary proceedings connected with or preceding the levy; for these defendants admit the levy of the attachment on this property, and this is enough. For these propositions see the authorities cited by the appellant. The answer does not seem to present a defense to the action; but we think we cannot order judgment here, for there seems to have been no trial below, and we cannot know what course the defendants would have taken, by amendments or otherwise, by way of defense to plaintiffs’ action. Judgment reversed and cause remanded.