Morgan v. Menzies

Citations

• 60 Cal. 341
• 1882 Cal. LEXIS 461

Syllabus

<p>Undertaking on Attachment—City and County—City.—Section 1058, C. C. P.—providing that no bond, written undertaking or surety can be required of the State or the people of the State, or any state officer in his official capacity, or “ any County, City or Town ” in any civil action or proceeding in which they are parties, etc.—applies to the City and County of San Francisco.</p> <p>Id.—Id.—Id.—Definition.—The term City includes in its signification City and County.</p> <p>Id. —Id. —Id.—Common Law Bond—Illegal Consideration—Policy of the Law.—An attachment undertaking given by the City and County in a suit in which it is plaintiff, is in contravention of the policy of the law, and therefore void as a common law bond.</p> <p>Id.—Breach of Condition—Pleading—Sureties.—In an action against the sureties in an undertaking, the condition of the undertaking was that if the defendant recovered judgment the plaintiff would pay all costs that might be awarded to the said defendant, and all damages which he might sustain by reason of said attachment, not exceeding, etc.; but there was no averment in the complaint that the plaintiff had not paid, or even that a demand had been made.</p> <p>Held: The complaint was fatally defective. The breach of the contract being obviously an essential part of the cause of action must in all cases be stated in the declaration; and the omission to allege a breach can not be aided or cured even by verdict.</p>