The herald., 1896-12-18
ON AN ATTACHMENT
An Opinion by Judge York Which Covers
Nice Point of Law

An opinion was yesterday handed
down by Judge York in the suit Of Joseph
Mutually VS.. F. N. Townsend and F. F
Ward, wherein the defendants were sued
on their obligation on an undertaking
to release an attachment. In the under
taking they promised that in case the
plaintiff in the action in which the at
tachment was Issued recovered judg-
ment the defendants would, on demand,
redeliver the property released on the
giving of the undertaking to the proper
off1cer to be applied on the payment of
any Judgment that might be rendered in
favor of the plaintiff or in default that
the defendant therein and these defend
ants would on demand pay the plaintiff
the full value of the property released,
not exceeding the sum Of $500.
''The plaintiff" says the court In the
opinion rendered, "shows recovery of
judgment by him In that action and
demand upon the defendant in that ac-
ton that the property attached therein
and released from the attachment by rea
son Of the giving Of said undertaking
should be delivered to the sheriff to be
levied upon in satisfaction of said judg
ment, and also a failure of the defendant
In that action to deliver said property,
and a demand thereafter and before the
these defendants. and each of them, that
they pay plaintiff the said judgment and
that they fulfill their obligation as ex-
pressed In said undertaking.
ION the trial the allegations Of the
complaint were proven that the defend
ant moved for a non-suit And the ques-
ton involved is whether the demand
upon these defendants was sufficient.
''In the case of Pierce against Whiting,
63 Cal. 542, the supreme court of this
state says: "A demand before suit was
therefore essential to fix the liability of
the defendants upon their undertaking
They promised upon the express con-
dition that demand should be made upon
them and their principal for the pay
ment of the value of the property re-
leased in case of his failure to redeliver
it,.
I'm that case it appeared that a de-
mand was made upon the judgment debt
or in the action wherein the writ of at
tachment issued for the payment of the
Judgment and a redelivery of the yacht
which had been attached, to be applied
to the satisfaction of the judgment. The
| judgment was not paid nor was the
| yacht redelivered. The plaintiff had
| Judgment and the defendants appealed.
| The supreme court reversed the judg-
ment on the ground that demand had not
been made upon the sureties to the un-
Here it is contended that sufficient
| demand was made, but the demand al
legged and proven is deficient in that it
! does not demand that the defendants
pay the plaintiff the value of the prop
erty released not exceeding the sum of
| $500 or the breach by the principal to
deliver the attached property to the
proper officer to be applied on the pay
ment of the judgment recovered against
him. The demand, in addition, for q
fulfillment of their obligation as ex-
pressed in said undertaking is insuffi.
! cient in that it is too general to give
| the defendants notice of what they are
expected to do They have been given
no notice of the default of their prin-
c1pal and no demand has been made
upon them for the payment of the value
of the property released There is no
hardship whatever in requiring this de-
mand on the part of the plaintiff. and ii
is due to the defendants that the demand
be made. compliance with the terms
of the obligation on the part of the plain
| tiff is necessary in order to show a
| breach on the part of the defendants
They are bound as the undertaking..
provides, and no further, and they are
entitled to stand on the precise terms
Of their obligation. Until demand Is
| made upon the defendants for payment
Of the value Of the property released the