PALMER vs. MELVIN

PALMER vs. MELVIN. Fourth District Court for San Francisco Co., Dec. T., 1857. UNDERTAKING. An undertaking given to release goods seized under process of attachment, may bp void, as a statutory undertaking, but yet, if it is founded upon a valid consideration, it may amount to an original obligation at common law upon which an action may be sustained. This action was brought upon an undertaking given to release an attachment and which defendants defend on the grounds, that the undertaking was not made in pursuance of the direction and requirement of the statute. C. H. S. Williams, for plaintiff, Lockwood $ Wallace, for defendant. [MAJORITY — HageR, J.] HageR, J. — As a statutory undertaking, the obligation sued upon is defective and informal, but at common law it must be regarded as an original undertaking, founded, as has been proven, upon a valid and sufficient consideration, whereby a liability has been created by the voluntary act of defendants. In this view of the case, plaintiffs are entitled to recover, if defendants have failed to perform their agreement, for the damages they have sustained, not to exceed the sum mentioned in the undertaking, Judgment accordingly.