McMillan v. Dana

Where defendant in attachment applies to the Court under Secs. 136 and 137 of the Practice Act for a discharge of the attachment, and an undertaking is executed by D. & B., reciting the fact of the attachment, and that “in consideration of the premises, and in consideration of the release from attachment of the property attached as above mentioned,” they undertake to pay whatever judgment plaintiff may recover, etc., and the Court malees an order discharging the writ and releasing the property: Held, in suit against the sureties on the undertaking that the complaint need not aver that the property was actually released and delivered to the defendant; that as the consideration for the undertaking was the release of the property, and as the complaint avers such release, in consequence and in consideration of the undertaking, by order of the Court, which is set out, the actual release and redelivery of the property to defendant is immaterial—the plaintiff having no claim on it after the undertaking was given and the order of release made.

The recitals in statutory undertakings given in such cases, have the same effect and are to be construed in the same way as bonds making the same recitals, and are conclusive of the facts stated.

The sureties on a statutory undertaking given to release property attached, reciting the fact of the levy, the release of the property and promises to pay the judgment, etc., cannot, when sued on the undertaking, question either the fact of the levy, or whether the property was subject to it.

Query. Whether these rules as to the effect of statutory undertakings would be different if the undertakings varied from the statute in merely formal matters 7

In suit on a statutory undertaking given to release property attached and reciting the fact of a levy of the writ, the complaint need not aver or set out the facts which authorized the issuing of the attachment. The recital of the levy estops defendants from denying it, and the levy is sufficient without averment of the previous proceedings.

Where the Court below granted a nonsuit—the case being submitted on complaint on an undertaking and answer—the Supreme Court, while reversing the judgment below, refused to enter judgment for plaintiff, although the answer presented no defense: holding, that as there was no trial below, the Court could not know what course defendants would have taken, by amendments or otherwise, by way of defense to the action.

Amendments to pleadings should be allowed with great liberality at any time before trial—injurious delays being avoided, and the amendment being essential to a fair trial on the merits.