Rosenthal v. Perkins

Citations

• 123 Cal. 240
• 55 P. 804
• 1898 Cal. LEXIS 1020

Syllabus

<p>Attachment—Redelivery Bond—Dissolution of Attachment—Insolvency of Defendant—Liability of Sureties.—A redelivery bond given for the release of property attached, conditioned that if plaintiff recover judgment in the action, the defendant will, on demand, redeliver the attached property to the proper officer, or that, in default thereof, the defendant and his sureties will, on demand, pay the value thereof, not exceeding the fixed sum, operates to release the property from the attachment and to dissolve the attachment as to the property so released, and upon an adjudication of the insolvency of the defendant, his ability to return the property having ceased, and in case of a recovery of judgment by the plaintiff, the sureties on the bond become liable to an action by him for the value of the property.</p> <p>Id.—Alternative Contract—Impossibility of One Alternative.—If an agreement is in the alternative, and one of the alternatives becomes impossible or cannot be lawfully performed, the party so contracting is bound to perform the other alternative, and the obligation is to be interpreted as if the other alternative stood alone.</p> <p>Id.—Insolvency Proceeding—Previous Dissolution of Attachment.—■ If at the time of commencing a proceeding in insolvency there is no attachment in force upon which the proceeding can operate, an attachment against the insolvent debtor having been previously dissolved, by a bond given for that purpose, the liability of the sureties on such bond is not released or affected by the insolvency proceeding.</p> <p>Id.—Order fob Release of Attached Property—Recital in Undertaking—Presumption.—Where the goods were in fact released as a consequence of the bond being given, and the undertaking for the release of the attached property recited that it was given pursuant to an order of the court requiring it to be given, and the officer accepted the bond and surrendered the property, it must be presumed that an order discharging the attachment was