Nickerson v. Chatterton

Burnett, J., delivered the opinion of the Court—Murray, C. J., concurring.

The plaintiff brought an action against the California Stage Company, to recover the possession of a horse, of the alleged value of four hundred dollars. The sheriff took possession of the horse; and the stage company, under the 104th section of the Practice Act, required a return thereof; and defendants, Chatterton and Waters, entered into an undertaking, as required by that section. The plaintiff recovered judgment against the stage company, and then brought suit against defendants on their undertaking. The defendants demurred to the complaint, which demurrer was overruled, and they appealed to this Court.

The first objection urged against the complaint is, that there is no allegation that the horse was delivered by the sheriff to the stage company. A copy of the undertaking is set out in full in the complaint, from which it appears that the sheriff had taken possession of the horse for the plaintiff under sections 101 and 102; and in assigning breaches of the undertaking, the plaintiff states, that neither the stage company, nor the defendants, had delivered the horse, but does not allege that the sheriff had delivered the animal to the stage company, so that the company could have delivered it to the plaintiff. It would seem clear, that the delivery of the horse to the stage company must precede the liability of the defendants upon the undertaking, although it is under seal. It is a condition precedent, apparent upon the instrument, taken and construed with reference to the law under which it was given, and which forms a part of the undertaking itself. Mattoon v. Eder et al., Jan. Term, 1856; Russell et al. v. Elliot et al., 2 Cal., 245.

The complaint should have alleged the delivery of the horse to the stage company. It was an affirmative fact, going to the merits of the plaintiff’s claim for the value of the horse, and should have been alleged and proven. In the case of Palmer et al. v. Melvin et al., decided at the last October Term of this [571]Court, it was held, that the complaint was defective, because “it did not state the property attached was released upon the execution and delivery of the bond.” “ To charge the defendants, it is necessary to allege the consideration of the undertaking, and a mere reference to the condition of the bond is insufficient.”

Another objection urged against the complaint is, that it simply alleges that plaintiff obtained judgment against the company, “ for the restitution of the horse, and for the sum of three hundred dollars, and one hundred and forty-nine dollars costs.” The defendants insist, that in actions for the recovery of specific personal property, the verdict of the jury must find, first, the value of the property, and which party is entitled to it; and, second, the damages, if any are claimed and proved, and that the judgment and execution must follow the verdict, and be in the alternative, that the successful party shall have a delivery of the property, or if that cannot be had, shall recover the value as found by the jury, and stated in the judgment, and also his damages and costs.