Ward v. Massachusetts Bonding & Insurance

WEYAND, J.,

pro tem.

This is an action to recover from the Massachusetts Bonding and Insurance Company, on account of an undertaking executed by said Bonding Company, for the redelivery to defendants of certain attached property.

The plaintiff above named brought an attachment suit in the superior court of Mariposa County and attached certain real and personal property, claimed to belong to M. C. McIntyre and J. C. Yancey, -the defendants in said attachment suit. The property attached was a certain mine known a

[794]

s ‘ The Early Mine, ’ ’ an ore-bin and a lot of gold-bearing ore in the ore-bin.

Immediately after the attachment, and before a return of the writ of attachment, McIntyre and Yancey gave an undertaking to the sheriff of Mariposa County, for the release of said property from the attachment. This bond was accepted by the sheriff, aforesaid, and the sheriff delivered the ore to the defendants in the attachment suit. The “Early Mine” was never released of record.

Appellant herein contends that the evidence was insufficient to justify the verdict, and this contention is based upon two separate claims. It is first asserted that as there was no proof of a release of the “Early Mine” and .the ore-bin, there can be no.recovery. The evidence adduced at the trial herein clearly showed that McIntyre and Yancey had been operating the said “Early Mine” under some form of bond or working agreement, but that their rights under this bond had expired on November 17, 1915. The attachment herein was levied on or about March 11, 1916, some four months after their rights in this mine had expired. Between the date of the expiration of their working - bond or agreement on this mine, and the attachment by the sheriff of Mariposa County, McIntyre and Yancey had been maintaining possession of the “Early Mine” by force and “under guns,” as some witnesses expressed it. After the giving of the undertaking by the Bonding Company, it is true, the sheriff never made a record of the release of the attachment, as is required by section 560 of the Code of Civil Procedure. The undertaking given for the release of the property recites that it is given “in consideration of the release from said attachment of the property attached.” The evidence clearly shows that upon the approval of this undertaking the sheriff did return the ore in the ore-bin, and discharged the keeper of the property, and it further appears that McIntyre and Yancey took possession of and milled the ore. The sole and only property held by the sheriff, that was of value to the defendants in the attachment suit, was returned to them. The recital in this undertaking is to the effect that the release has been made. It is not recited that a release is to be made in the future. The usual doctrine applicable to bonds of this nature is that all recitals operate as estoppels against