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property attached was released upon the delivery of the undertaking: Williamson v. Blattan, 9 Cal. 500. A failure to do so is fatal, and the defect may be taken advantage of by demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action: Id.

37. That Property was Released.--The complaint should state that the property was released upon the execution and delivery of the bond. It is necessary to state the consideration of the undertaking; a mere reference to the condition of the bond itself is insufficient: Palmer v. Melvin, 6 Cal. 651.

No. 311.

vii. On an Undertaking Given in Claim and Delivery. [TITLE.]

The plaintiff complains, and alleges:

I. That heretofore this plaintiff commenced an action in the........Court, against A. B., to recover possession of specific personal property.

II. That in the course of said action such proceedings of claim and delivery under and pursuant to the statute were had, that on the......day of... ..., 187., the defendants made and delivered to the Sheriff for the use of this plaintiff, pursuant to the statute, their written undertaking, of which the following is a copy [copy of the undertaking]. III. That the personal property referred to in said undertaking was delivered [or released] to the said A. B., defendant in said action, pursuant to said undertaking, and to a requisition of said A. B., defendant in said action, made pursuant to law, and said undertaking was thereupon delivered to this plaintiff.

IV. That such proceedings were afterwards had, that on the........day of.. .., 187., a verdict in the District Court of the........Judicial District, ....Judicial District, .......county, was rendered against the said A. B., wherein the value of the said property was found to be......dollars, whereupon judgment was rendered against A. B., the defendant therein, that the plaintiff recover possession of said property, or the sum of........ dollars, in case a delivery could not be had.

V. That the defendant has not returned said property, nor otherwise paid or satisfied said judgment.

VI. [State demand, where that is necessary.]

VII. That this plaintiff thereafter caused execution to be issued on said judgment against the said defendant,

A. B., which execution has been returned wholly unsatisfied.

VIII. That the defendant has not paid said judgment.

[Demand of Judgment.]

38. Action by Assignee.—In an action by the assignee of an undertaking given in proceedings of claim and delivery, it is sufficient, by way of showing the plaintiff's title, to allege that the undertaking was duly assigned, etc., to him, without alleging that the judgment in the action was also assigned: Morange v. Mudge, 6 Abb. Pr. 243. When the action is brought by the assignees of only a portion of the promisees, there is a defect of parties; all the promisees should be represented: Bowdoin v. Coleman. 6 Duer, 182; 3 Abb. Pr. 431. Where a replevin bond substantially conforms to the act, the assignee of the defendants can maintain an action upon it: Wingate v. Brooks, 3 Cal. 112.

39. Consideration. The averment of delivery and release is an averment of consideration, and must be stated, even if the undertaking was under seal: Nickerson v. Chatterton, 7 Cal. 568. But if the undertaking recites the performance of the condition, a complaint setting forth the undertaking need not also aver performance: McMillan v. Dana, 18 Cal. 339.

40. Delivery and Release.-It must be averred that the property was delivered or released: Palmer v. Melvin, 6 Cal. 651; Williamson v. Blattan, 9 Id. 500.

41. Demand.-No demand need be averred where judgment was returned unsatisfied: Bowdoin v. Coleman, 3 Abb. Pr. 431; Slack v. Heath, 1 Id. 331.

42. Facts Authorizing Issue of Process.-The complaint need not aver that it was taken in pursuance of the statute. It is enough that the instrument set forth is in accordance with the statute: McMillan v. Dana, 18 Cal. 339; Shaw v. Tobias, 3 N. Y. 188; Gregory v. Levy, 12 Barb. 610.

43. Interest Awarded.-Upon an undertaking given in an action of claim and delivery, for the payment of a fixed sum, and not conditioned for the return of the goods, interest may be awarded upon the amount of the penalty from the date of judgment in the original action; because after the recovery the sureties are in default, and the neglect to pay puts them in the wrong: Emerson v. Booth, 51 Barb. 40.

44. Joint Bond.-No recovery can be had on a bond purporting to be a joint bond of the principal and sureties, but signed by the latter only: City of Sacramento v. Dunlap, 14 Cal. 421. Otherwise, as to undertakings under our system. They are original and independent contracts on the part of the sureties, and do not require the signature of the principal: Id.

45. Judgment in the Alternative. The complaint should show that judgment was rendered in the alternative: Nickerson v. Chatterton, 7 Cal, 568. It must be averred that neither had the property been returned, nor the specified value thereof, as fixed by the judgment in the original suit. paid: Id.

46. Liability of Sureties.-Where the plaintiff, in replevin, gives the statutory undertaking, and takes possession of the property in suit, and is afterwards nonsuited, and judgment entered against him for the return of the property and for costs: Held, that his sureties are liable for damages sustained by defendant, by reason of a failure to return the goods, but not for

damages for the original taking and detention-the value of the goods not having been found by the jury: Ginica v. Atwood, 8 Cal. 446. If an undertaking in an action in replevin commenced in a justice's court limits the liability of the persons who execute it to a judgment for the return of the property rendered by the justice, and such judgment is not rendered in the justice's court, a recovery cannot be had upon the undertaking, even if, on appeal, such judgment is rendered by the county court: Mitchum v. Stanton, 49 Cal. 302. Otherwise, if the statutory form of the undertaking is followed: Id. A judgment in favor of the defendant which does not award him a return of the property, does not impose any liability upon the sureties: Id. 47. Reference to Section of Act.—A complaint upon an undertaking given under the provisions of a statute, which contains no other description of the instrument than an allegation that it corresponds with the provisions of such statute, is defective: Mills v. Gleason, 21 Cal. 274. The material portions of the undertaking should be set forth; but it will be at most only a defect of form, and objection must be taken by demurrer: Id. As to manner of pleading in such cases, consult Bowdoin v. Coleman, 3 Abb. Pr. 431; Slack v. Heath, 1 Id. 331; Rayner v. Clark, 7 Barb. 581; Loomis v. Brown, 16 Id. 325; Gregory v. Levy, 12 Id. 610; Gould v. Warner, 3 Wend. 54; Phillips v. Price, 3 Maule & S. 180; 1 Bos. & P. 381, n.

48. Value of Property.-The complaint does not state facts sufficient to constitute a cause of action, unless it aver that the value of the property was found by the jury, and that an alternative judgment was rendered: Clury v. Rolland, 24 Cal. 147.

[TITLE.]

No. 312.

viii. On an Undertaking Given in Injunction.

187., in an action.

The plaintiff complains, and alleges: I. That on the......day of....... brought by C. D. against this plaintiff, an injunction, issued out of this Court, was served on this plaintiff, enjoining him from [state effect of the injunction].

II. That upon the issuing of the said injunction, the defendants gave an undertaking required by section five hundred and twenty-nine of the Code of Civil Procedure [or by law], of which the following is a copy [copy of undertaking].

III. That such proceedings were had in the said action. that it was finally decided by the Court, and thereby adjudged, that the said C. D. was not entitled to the said injunction.

of..

IV. That the damages sustained by this plaintiff, by reason of the said injunction, amounted to the sum of.. dollars, and interest thereon from the .... day of which the Court on that day awarded to this plaintiff. V. That no part thereof has been paid.

[Demand of Judgment.]

49. Damages.-Where an officer is enjoined from paying over money in his hands, legal interest only can be recovered as damages for its detention, in an action on the injunction bond: Lally v. Wise, 28 Cal. 539. To recover damages for the wrongful issuing of the writ, it was held that the amount paid to counsel as a fee to procure the dissolution of the injunction was properly allowed as part of the damages: Thaie v. Quan, 3 Cal. 216. So held also when an order to show cause why injunction should not issue was made, though the fee was paid after the return of the order to show cause, provided the retainer was before that date: Prader v. Grim, 13 Cal. 585.

50. Damages must be Averred.-In the action against the sureties on an injunction bond, the condition of which is that the plaintiffs in the suit for whom the sureties undertook should pay all damages and costs that should be awarded against the plaintiff by virtue of the issuing of said injunction by any competent court, and the complaint did not aver that any damages had been awarded: Held, that such complaint is fatally defective: Tarpey v. Shillenberger, 10 Cal. 390.

51. Enjoining Payment of Money.-M., a sheriff, had in his hands money belonging to L., which he had collected on an execution in favor of L. & D., against S. W. & C. commenced an action against M., L. and others to enjoin M. from paying the money to L., and procured a preliminary injunction, which was served on M. alone, but L. appeared in the action and defended. The injunction bond ran to all the defendants: Held, that L. could maintain an action for damages on the injunction bond: Lally V. Wise, 28 Cal. 539.

52. Obedience to Injunction. -Mere obedience upon notice of issuance of injunction, is sufficient, if alleged: Cumberland Coal and Iron Co. v. Hoffman Steam Coal Co., 15 Abb. Pr. 78.

53. Service of Injunction.—An allegation that injunction was served imports a legal service: Loomis v. Brown, 16 Barb. 325.

54. Statement of Trial on Injunction.-It is sufficient to allege that an injunction was granted by a court or judge, that issues were joined and judgment rendered: Loomis v. Brown, 16 Barb. 325.

55. Who may Join.-All obligees on an injunction bond may join as plaintiffs, whether their several claims be similar or not: Loomis v. Brown, 16 Barb. 325.

No. 313.

ix. On a Bond or Undertaking, Condition only Set Forth. [TITLE.]

The plaintiff complains, and alleges:

I. That on the ...... day of

187., the de

fendant covenanted with the plaintiff, under his hand and seal, to pay to the plaintiff the sum of [state the penalty].

II. That said obligation was upon the express condition thereunder written, that if, etc. [set forth the words of the condition], the said obligation was to be void, otherwise to remain in full force.

III. [Allege breaches, as in other cases.]

[Demand of Judgment.]

56. Breach of Condition-The Basis of the Action. The breach of the conditions of a penal bond constitutes, in fact, the basis of the plaintiff's action, and it should be assigned with certainty and particularity, so as to show the injury: Campbell v. Strong, Hempst. 265; Dixon v. United States, 1 Brock. Marsh. 177; Postmaster-General v. Cross, 4 Wash. C. Ct. 326. In general, it is sufficient to allege the breach in the terms of the condition of the bond: Berger v. Williams, 4 McLean, 577; Gorman v. Lenox, 15 Pet. 115; see note 59.

57. Notice.-Notice to the representative and a demand upon him, are not always essential: People v. Rowland, 5 Barb. 449. It is not necessary to aver notice to the sureties, nor to state who was the applicant for the order for prosecution: People v. Falconer, 2 Sandf. 81.

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58. Parties. In an action on a bond or written undertaking, there can be no constructive parties jointly liable with the proper obligors: Lindsay v. Flint, 4 Cal. 88.

59. Penal Bonds. In actions on penal bonds, the complaint must specifically assign the breaches for which the action is brought: Baker v. Cornwall, 4 Cal. 15; Munro v. Alaire, 2 Cai. 319; 1 Bibb. 242; Burnett v. Wylie, Hempst. 197; and see Hazel v. Waters, 3 Cranch C. Ct. 682; Western Bank v. Sherwood, 29 Barb. 383: e. g., on a bond conditioned that a third party shall pay on a certain contingency or on demand, or for an uncertain sum, breaches must be assigned: Nelson v. Bostwick, 5 Hill, 37. Also a bond given on a plea of title before a justice: Patterson v. Parker, 2 Id. 598. But not a bond payable in money by installments: Harmon v. Dedrick, 3 Barb. 192; Spaulding v. Millard, 17 Wend. 331. Nor to bonds payable in money only, which may be brought under actions on written instruments.

No. 314.

x. On Arbitration Bond-Refusal to Comply with Award. [TITLE.]

The plaintiff complains, and alleges:

I. That in consideration of certain questions in difference between plaintiff and defendant, and of a certain bond executed by this plaintiff to the defendant, the defendant, on the .... day of...... 187., at ...... .., made and delivered to the plaintiff an undertaking, conditioned to abide the award of .... upon said question of dif

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ference; a copy of which undertaking is hereto annexed, marked "Exhibit A."

II. That said

undertook the arbitration 187., at .....

thereof, on the .... day of .... and duly published their award in writing upon the matter submitted, and delivered the same to the parties, and thereby awarded that the defendant should [state terms of the award], a copy of which award is hereto annexed as a part of this complaint, marked "Exhibit B."

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