Crandall v. Rickley

Berry, J. This is an action upon an attachment bond made under Gen. St., c. 66, § 131. That section requires the bond to be “conditioned 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 the attachment, not exceeding the penalty of the bond.” This condition makes the liability of the plaintiff to pay the damages mentioned (as well as the costs) dependent upon the recovery of judgment by the defendant. Until such recovery, the liability to pay does not accrue. In the case at bar, the condition of the bond is, that the “plaintiff shall pay all costs that may be awarded to said defendants (if they recover judgment in said action) and all damages which they may sustain by reason of the attachments,” etc. The bond was evidently made (as is alleged in the complaint) in pursuance of the provisions of section 131, supra. We think its condition is, in substance and effect, the same as that prescribed by the statute. The complaint failing to allege that any judgment has been recovered by the defendants in the action in which the attachment issued, it fails to state a cause of action. The defendants’ demurrer should, therefore, have been sustained, and the order overruling the same is accordingly reversed.