Driggs v. Harrington

2 Mont. 30 | Mont. | 1874

"Wade, O. J.

This is an action brought against the sureties upon a statutory undertaking given to release attached property in pursuance of section 2 of an act (Laws of 1869, p. 67), which provides, “ Before releasing such attached property as aforesaid to- the defendant, the sheriff shall require an undertaking, executed by the defendant and at least two sureties, residents and freeholders, or householders, in the county, to the effect that, in case the plaintiff recover judgment in the action, defendant will, on demand, redeliver such attached property so released to the proper officer, to be applied to the payment of the judgment, and that, in default thereof, the defendant and sureties will pay to the plaintiff the full value of the property so released.”

The plaintiff in the attachment case recovered a judgment, and this suit is brought by the assignor of such plaintiff, but no demand was made by the plaintiff, or by the proper officer, upon the defendants in the attachment "suit to redeliver the released property before the commencement of this action, andjhis failure to make demand, it is contended, releases the. sureties, these defendants, from the obligations of their undertaking.

It is averred in the complaint, and admitted by the defendants, that the property attached was gold retort, and that immediately after it was released, by giving the undertaking sued on, it was taken out of the Territory and placed beyond the jurisdiction of the court; that before this action was brought, the defendants in the attachment suit had left the Territory, and had no place of residence or business place therein; that they were insolvent, and that these defendants were notified that said judgment had not been paid.

Under this state of facts no demand was necessary. The demand contemplated by the statute for the redelivery of the property should have been made by the sheriff or other proper officer. The sheriff receives the undertaking, and he should de-mancT the redelivery of tbe property. But the sheriff can make no demand out of his county, and especially not out of the Territory, and as the property and the principals for whose benefit this undertaking was given were not in the Territory at the time this action was brought, and had no residence or place of business therein, no demand upon them could have been made by the sheriff. But if they had been in the Territory, and within the jurisdiction of the officer, and he had failed in his duty to make demand to the damage or injury of the sureties, they would have their remedy against such officer, but their liability upon the undertaking would not be released. The sureties were notified that the judgment was not paid. In that event, they had promised that the property should be redelivered, and it was for them to cause the officer to make demand for such redelivery. But the demand could not be made because the principals had left the Territory, and had taken with them the attached property by the action of these defendants in executing this undertaking.

The law does not require a vain, nugatory or impossible act, and to hold that a demand was necessary in order to fix the liability of sureties upon an undertaking, under such circumstances as these, would entirely destroy the security of such undertaking, for it would enable the defendant in every attachment case to obtain possession of the attached property by virtue of the undertaking, and would also enable him to make such undertaking void and good for nothing, by simply keeping out of the way of a demand.

Sureties, although they have the right to stand upon the letter of their contract, cannot make such contract the instrument for perpetrating fraud, in order to be released from its obligations.

No man shall take advantage of his own wrong, and to release these sureties would enable them to do this, if they felt so disposed, for if a personal demand is in all cases necessary, there is nothing‘to prevent sureties from conniving with their principals to the end that they and their property are placed beyond the reach of the plaintiff, and then, because no demand can be made, the sureties are released, when, in truth, the sureties may have been the means of rendering a demand impossible. •

The judgment is affirmed.

Judgment affirmed.