Opinion
[Syllabus Material] [Syllabus Material] Rehearing Granted 29 Cal. 194 at 198.
Appeal from the District Court, First Judicial District, Santa Barbara county.
The following is the bond given to the Sheriff on which suit was brought:
" Know all men by these presents, that we, Domingo Abadie & Brothers as principals, and Albert Packard and Lewis T. Burton as sureties, are held and firmly bound unto Thomas Dennis, Sheriff of the county of Santa Barbara, in the sum of twenty-five hundred dollars, lawful money of the United States, for the payment of which, well and truly to be paid to the said Sheriff or his assigns, for which payment, well and truly to be paid, we bind ourselves, our heirs and assigns, jointly and severally by these presents, sealed with our seals, and dated this 15th day of December, 1862.
" The condition of the above obligation is such that, whereas the above named Sheriff has by virtue of a writ of attachment, issued under the seal of the above named Court, levied upon the stock of goods now in the Washington Store, in the city of Santa Barbara; now, therefore, if the said plaintiff recover judgment as against the said defendants in the above entitled action, that the said judgment will be welland truly paid to the extent of said sum of twenty-five hundred dollars, including costs."
COUNSEL:
S. F. & J. Reynolds, for Appellant, argued that the bond was a simple bond of indemnity to the Sheriff; that the plaintiff in the action had no interest in it, and that a tender to him did not discharge the sureties. They further contended that even admitting a tender to the plaintiff could discharge the sureties, that the tender was not good because the money was not paid into Court with the plea; and cited Grah. Prac. 249; Petlin v. Shelton, 1 Strange, 638; and 1 Tidd's Prac. 640, 643. They further insisted that if the bond was not one of indemnity to the Sheriff, it was a covenant to pay the amount of the judgment, to secure which the property was attached; and cited Post v. Jackson, 17 John. 245.
Eugene Lies, for Respondent, argued that the tender once made, released the sureties, inasmuch as they merely undertook that the principal would do the very thing which he did do when he made the tender; and cited Hayes v. Josephi, 26 Cal. 535.
JUDGES: Sawyer, J.
OPINION
SAWYER, Judge
By the Court, Sawyer, J., on rehearing:
When a rehearing was granted, we had overlooked a clause in section one hundred twenty-three of the Practice Act, as amended in 1860, and were under the impression that sections one hundred thirty-six and one hundred thirty-seven controlled the case.
Section one hundred twenty-three of the Practice Act provides that the writ of attachment shall be directed to the Sheriff, etc., and requires him to attach and safely keep all the property of the defendant, etc., " unless the defendant gives him security by the undertaking of at least two sufficient sureties to satisfy such demand, besides costs; or in an amount equal to the value of the property which has been or is about to be attached, in which case to take such undertaking ." The undertaking, then, if sufficient and answers the requirements of the statute, is to be taken when the property " has been " as well as when it " is about to be attached." The undertaking required by the statute is to be taken instead of the property of the defendant, and is for the benefit of the plaintiff, who is the party in interest, and not for the protection of the Sheriff. It is the mode prescribed by the statute for securing the demand pending the action. If the Sheriff takes a sufficient statutory undertaking, his duty in the premises is discharged, and he has no further responsibility in the matter. The rest concerns the plaintiff and the sureties on the undertaking. It only remains to be determined whether the instrument in suit fulfils the requirements of the statute. It was evidently intended to be--and we think it substantially is--a compliance with the provisions of section one hundred twenty-three. It is under seal, and in the form of a common law bond with a condition. But the statute does not prescribe the form of the instrument. It is to be an undertaking, and an undertaking is an engagement by one of the parties to a contract to the other, and not the mutual engagements of the parties to each other. There is necessarily an engagement by the party on one side only. (Bouv. Law Dic., 611.) It may be under seal in the form of a common law bond, or without seal in any form that substantially expresses the obligation required by the statute. ( Episcopal Church of St. Peter v. Varian, 28 Barb. 645; Conklin v. Dutcher, 5 How. Pr. 388; Town of Guilford v. Cornell, 4 Ab. 220.) The sureties undertake that the judgment shall be paid, including costs, to the extent of two thousand five hundred dollars. There is no complaint made that this amount is not equal to the value of the property attached. We think the undertaking a substantial compliance with the statute. That being so, it is an obligation in favor of plaintiff in the action, notwithstanding it runs in the name of the Sheriff. The plaintiff is the real party in interest, and he may sue upon it as such. Section one hundred thirty-four provides that " if the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section one hundred twenty-three." It was so held in relation to a bond under seal, running in the name of the State of California, given to procure an attachment under section one hundred twenty-two, where there was no such express provision as is contained in section one hundred thirty-four. ( Taaffe v. Rosenthal, 7 Cal. 515. See also Baker v. Bartol, 7 Cal. 553.) The tender was made to the plaintiff, the real party in interest, and discharged the sureties. And for the purpose of discharging the sureties, it was unnecessary that the tender should be kept good. The judgment rendered on the former hearing was correct.
Order denying a new trial affirmed.