I. Theundertaking sued on, being a purely statutory obligation, has no force outside of the statute. Hence the complaint is defective in failing to show that it was taken in an action and under circumstances in which by the statute it could have been taken.
As a foundation for such an undertaking, the complaint should show an action pending in which an attachment might lawfully have issued, and next the due issuance and levy of such attachment.
The writ of attachment being a special remedy, in a specific and exceptional case, issued by a ministerial officer, the rules of pleading in cases relying on a right derived under a special jurisdiction apply strictly. (People v. Koeber, 7 Hill, 39, 41-43 and cases cited; Cornell v. Barnes , 7 Id. 35, 37 and Reporter's note, 37-39; Lawton v. Erwin, 9 Wend. * 237; Dakin v. Hudson, 6 Cow. * 221, 224-5; People v. Brown , 23 Id. 47, 48-9; People v. Germond, 1 Hill, 343, 344, 345-6; Broadhead v. McConnell, 3 Barb. 175, 182, 183-6, discussing the cases; Acc. Cadwell v. Colgate , 7 Id. 253, 258-9; 2 Chitty's Pl. 457-460; 3 Burrill's Practice, 275-7; 3 Stephens' Nisi Prius, 2509, 2511; 2 Saund. Pl. & Ev. 797; 3 Wend. 54-5, 58; 4 Id. 616-618; 4 M. & Selw. 120, 126; 3 Id. 180-1; 1 Bos. & P. 381, note; 3 Chitty's Pl. 1088, 1089; 1 Salk. 409 and cases; 3 Denio, 47-8; 1 Saund. 296, 296 a, note b; 3 Denio, 567, 570, 572.) So also is the analogous distinction between pleading a right under a general estate in land, and a right under a limited or special estate. (Stephen's Pl. * 306, * 308-9, sec. 4, rule 5.)
The distinction is decisive between the rule of pleading in an action like the present, and that in an action on an obligation founded on a writ or a proceeding which is of course in a general class of cases, or by the Court or Judge exercising a general jurisdiction, or on an obligation which is valid on its face. As for instance on an undertaking on an appeal, or for an injunction, or on a bond good at common law. In either of those cases very general allegations would be sufficient. There is, also, a further distinction in the case of a suit brought upon an obligation given voluntarily by a party plaintiff to initiate a special proceeding, or at least concurrently therewith or with the act of the officer--as an undertaking by the plaintiff for an attachment, for a replevin of chattels, for an order of arrest, etc. In such case it may well be that very general allegations would be sufficient against the party, or his sureties, who had invoked the special jurisdiction.
This class of distinctions explains and reconciles most of the reported cases, including nearly all the authorities quoted in appellant's brief. (See Woodruff's opinion in 4 E. D. Smith, 97-107.)
II. The complaint is fatally defective in not showing that upon the giving of the undertaking in question, the property attached was released and delivered to the defendant in the attachment.
The undertaking is merely executory and not binding, unless and until the express condition of it has been fully performed; that is, until an order has been granted discharging the attachment, and the property attached has been released from the attachment and delivered to the defendant. The condition and consideration form an entirety. If any part fails the whole fails, and the undertaking does not bind.
Suppose an undertaking signed and delivered to the Judge preparatory to obtaining the order, but the sureties on being required by the plaintiff, fail to justify, and the order is not granted, are thesureties bound, or does the undertaking go into effect in any way? In the case of bail bonds, where for any cause the sureties do not qualify, they are not liable upon the bond. (Flack v. Eager, 4 Johns. 185; People v. Judges, 1 Cow. 54; Id. 60; 2 Id. 514; Palmer v. Melvin , 6 Cal. 651; Williamson v. Blatten , 9 Id. 500; Nickerson v. Chatterton , 7 Id. 568; Palmer v. Melvin , 13 Id. 553, 556; 2 Chitty's Pl. 458; 4 Wend. 617, and authorities under point one.)
III. The defects of the complaint in the particulars mentioned are not supplied by the recitals of the undertaking set forth therein.
An action at law has two parts, the pleading and the proof, each of which must be sufficient or the action fails. The function of each is different, though the connection of both, in the progress of the action, is intimate. The pleading states the party's case according to certain established rules, so as to show a good and sufficient cause of action or defense. This it does without regard, as pleading, to the mode or substance of the proof, with which it has nothing to do. The function of proof is to make out, according to the rules of evidence, by fact what has beenalleged in the pleading. Sometimes the proof consists wholly or partly of admissions of the adverse party, which may be of such a nature as to constitute an estoppel, and may also be a portion of the contract set up as the cause of action or defense. This estoppel, however, is a different thing from the consideration or the condition essential in law to snpport the contract; and though when proved upon the trial, it may establish the consideration or the condition hy rendering the denial of it impossible, its existence, or even its allegation (which is mere surplusage) in the pleading, does not dispense with the due allegation of the consideration or the condition essential in law, to the validity and legal operation of the contract.
This distinction explains and disposes of the cases in appellant's brief on this point. Almost without an exception they are decisions as to the effect in proof on the trial, by way of estoppel, of recitals and allegations in the written contracts sued on, and do not even remotely refer to the present question, which is one of pleading. None of them sustain the doctrine contended for, that incorporating an instrument in a complaint is equivalent toalleging the facts contained in the recitals in such instrument. And in Palmer v. Melvin , 6 Cal. 651, it was held that the recitals in an undertaking to discharge an attachment, though set forth in full in the complaint, avail nothing to supply the omission to allege a consideration. Construing them most favorably for the appellant, the only effect of the recitals in the undertaking is to allege that the parties to it (respondents) admitted conclusively the facts therein recited. This never was good pleading. (Stansbury v. Arkwright, 6 Simons * 481, * 485, Eng. Ch.)
IV. Appellant is not entitled to an affirmative judgment in his favor on the pleadings. Respondents wish to be heard on the merits of the controversy, and if necessary for that purpose, to amend their answer so as to have all the facts before the Court. (Ord v. Uncle Sam , 13 Cal. 369.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring. Field, C. J., dissenting.
OPINION
BALDWIN, Judge
On petition for rehearing, Baldwin, J. delivered the opinion of the Court--Cope, J. concurring.
The petition for a rehearing is refused.
1. The expressions of the opinion are to be limited to the case before the Court. When we spoke of the effect of an undertaking as similar to that of a bond, we spoke, of course, of an undertaking taken in pursuance of the statute--for it was of a statutory undertaking that the observations were made. The record presented the question upon the complaint, which averred that the undertaking was made after an attachment, upon the order of the Judge. Whether a mere formal variation from the regular statutory course would make any difference in the rule, it is not necessary to determine; for no point was made or fact alleged as to such variation.
2. We think that it does not rest with the defendants to say that the property attached, if any was, was not subject to levy; for the condition is to answer the judgment; and no collateral inquiry can be made as to the fact of the levy or of the property being subject to it. This has been often decided in the case of forthcoming bonds in several States of the Union. It is not uncommon in Kentucky, Virginia, and Alabama to give bonds for the delivery of property merely fictitious in order to stop the execution of a fi fa; but it has been held that the parties executing the bond were stopped to deny that the property was levied on and subject to levy. The condition here is, that the obligors will pay the judgment in consideration of the discharge of the attachment; and if the undertaking be regular it is not at all important whether the property be leviable or not; for by the contract the parties have bound themselves to pay in an event independent of all considerations of this sort.
3. What we said in reference to the conclusive effect of the recitals, was upon the hypothesis that this was a statutory undertaking; and to that opinion we adhere. The question fairly arose upon the pleadings, and our judgment upon that matter remains unaltered.
4. We said nothing as to the effect of the plaintiff's conduct in interfering with the release of the property by the Sheriff; and if any matters of defense of this sort exist, the defendants can still insist on it.
The Court below may grant on the return of the cause any proper amendments to the pleadings that may be necessary to present the case fairly on the merits. And we here remark that under the liberal provisions of our Practice Act, Courts should allow amendments with great liberality at any stage of the proceedings before trial, when required--seeing that no injurious delays are occasioned, and that the matter of the amendment is essential to a fair trial on the legal merits of the case.
DISSENT:
FIELD
Field, C. J. I dissent from the judgment. I am of opinion that the complaint is fatally defective in not showing affirmatively that the writ issued in a proper case under the statute, and upon proper proceedings before the Clerk. The writ is a special remedy, allowed only in specific cases, and is issued by a ministerial officer, and I am unable to perceive why the rules of pleading in cases where a right is asserted from a special jurisdiction, do not apply. (See cases cited in Respondents' brief.)