city of Socorro has not been disturbed by the legislation of 1884, and that it still remains intact. The effect of chapter 37 of the Laws of 1884 is to prohibit the creation of any future municipal corporations under its provisions, and to compel municipal corporations in the future to incorporate under the act of the same date, and which is chapter 39 of the said acts; but, as I have already held, it has no effect upon the existence of such corporations as had been created under the provisions of the repealed act.

The writ must be discharged, and judgment entered for the defendants. It is therefore ordered that the judgment of the court below be affirmed.

(6 Mont. 340)

PARROTT v. SCOTT and another.
(Supreme Court of Montana. January 18, 1887.)

1. REPLEVIN-BOND-ACTION ON-NECESSARY ALLEGATIONS.

Where the property of a judgment debtor, levied upon to satisfy the judgment, is replevied from the sheriff by third parties, who fail to prosecute the replevin action, in an action by the judgment creditor on the undertaking in replevin his right to recover rests upon his right to have the replevied property applied to the payment of the judgment in the original action; and, when his complaint alleges that an execution had issued on the judgment, but does not allege that the judgment has not been satisfied, it is fatally defective.

2. SAME-BREACH-DISMISSAL OF REPLEVIN.

Where one of the conditions of the undertaking in replevin for goods levied upon under an execution is for the prosecution of the action, a dismissal of the action by the plaintiff is a breach of the condition, and entitles the judgment creditor to sue upon the bond for such damages as he may be entitled to.

3. SAME-CONSENT OF SHERIFF TO DISMISSAL.

It is not necessary to allege that the sheriff, defendant in replevin, did not consent to the dismissal of the action, and waive all right or claim to the return of the property and damages.

4. SAME DELIVERY OF BOND.

The complaint is defective when it fails to allege that the undertaking was delivered.

It is not necessary that the complaint should allege the assignment of the undertaking, by the officer in whose favor it is made, to the plaintiff.

6. SAME

FAILURE BY JUDGMENT CREDITOR TO GIVE SHERIFF INDEMNIFYING BOND-REV. ST. MONT. 309.

The failure of a judgment creditor to execute to the sheriff, who is about to levy an execution on the judgment, the indemnifying bond provided for by Code Civil Proc. Mont. 2 309, does not prevent him from suing on the bond given by claimants and their sureties who replevied the property levied upon by the sheriff. 7. SAME-FORM OF BOND-CODE CIVIL PROC. MONT. ? 157.

Under Civil Code Mont. ? 157, requiring an undertaking in replevin to be conditioned for the prosecution of the action without delay and with effect," an undertaking is sufficient which provides "for the prosecution of the action," omitting the words "without delay and with effect."

Appeal from district court, Silver Bow county.

Action on replevin bond. On demurrer.

Robinson & Stapleton, for appellant, Parrott. H. R. Whitehill, for respondents, Scott and another.

BACH, J. This is an appeal from the judgment roll alone. The demurrer to the complaint was sustained by the court below, and judgment was rendered against the plaintiff, from which judgment this appeal is taken.

The facts set out in the complaint are as follows: James B. McMaster, the sheriff of Deer Lodge county, by virtue of an execution issued out of the probate court of said county, in an action in which George Parrott, the abovenamed appellant, [was the plaintiff,] and one Alexander Glover was the defendant, levied on certain personal property as the property of said Glover. William R. James and Mary Glover claimed this property as their own, and

commenced an action in the district court of said county, against the said James B. McMaster, to recover the same. Their action was an action of claim and delivery under the statute, and in accordance therewith they made, executed, and filed with Thomas Strang, the coroner of said county, the affidavit required by law; and now, using the exact wording of the complaint, "executed to said coroner an undertaking in double the value of said property, said twenty-two head of cattle, with said defendants, said Scott and Zenor, as sureties, whereby they bound themselves," etc. Then follows the condition of the undertaking, which, using the words in the undertaking, is as follows: "That we are jointly and severally bound in the sum of $1,600, being double the value of said property, as stated in the affidavit, for the prosecution of the said action; for the return of the said property to the said defendant, if return thereof be adjudged; and for the payment to the said defendant of such sum as may, from any cause, be recovered against the said plaintiff." This undertaking was signed by H. II. Zenor and S. Scott; was dated "this twenty-seventh day of February, 1884;" and it is the undertaking sued upon in this action; and the judgment prayed for is the amount of the judgment upon which execution was issued out of the probate court of Deer Lodge county, as already stated.

In the second action, that in which the undertaking sued on was given, the defendant McMaster filed an answer, in which he denied that the plaintiffs in that action, William R. James and Mary Glover, were the owners of the property, and claimed a redelivery of the same. After the answer was filed, the plaintiffs dismissed the action.

The demurrer to the complaint, which we are about to consider, was upon the ground that the said complaint did not state facts sufficient to constitute a cause of action. There are several alleged defects, all of which are directly raised by the demurrer, and are relied upon, and each of which will therefore be passed upon.

1. That the foundation of this action is the judgment rendered in the probate court; that it appears from the complaint that execution was issued upon that judgment; but it does not appear that the defendant in the action in the said probate court had not paid the judgment. The complaint shows no damages by reason of the non-prosecution of the action. It fails to show any judgment against the plaintiff in the replevin action which these defendants were bound to pay. The only breach complained of is the failure to return the property mentioned in the undertaking. The right of the plaintiff to maintain this action is based upon the theory that he is subrogated to the rights of Strang in the undertaking, in order that the property mentioned in that undertaking should be applied to the payment of the judgment rendered in the probate court against Alexander Glover. If that judgment was paid, plaintiff suffered no damages, and he could not maintain this action. Its nonpayment is one of the material facts that entitled him to maintain this case, and should have been alleged. The complaint in this respect is fatally defective. See Winsor v. Orcutt, 11 Paige, 578.

2. It is claimed that the complaint is defective because it does not show that McMaster, the defendant in the replevin action, did not consent to its dismissal, and waive all right or claim to the return of the property and damages. The defendant McMaster, in the replevin action, claimed a return of the property. The order dismissing the replevin action leaves the parties in this action to try and determine whether or not McMaster was entitled to the return of the property. One of the conditions of the undertaking sued upon was for the prosecution of the replevin action. The order of dismissal was a breach of the condition, and entitled the plaintiff to bring his action for such damages as he was entitled to. See Mills v. Gleason, 21 Cal. 274.

Subdivision 1, § 234, Code Civil Proc., provides, in substance, that when the plaintiff dismisses the action, in which a provisional remedy has been al

lowed, the undertaking shall be delivered to the defendant, who may have his action thereon. It is not necessary for the plaintiff to deny, in the complaint, that McMaster waived all right or claim to a return of the property and dainages. Such an allegation should appear as a defense. In that respect it is sufficient to allege the conditions of the undertaking and the breach complained of. We think the complaint was not defective in that respect.

3. It is claimed that the plaintiff is not entitled to any interest in the replevin bond because he did not furnish McMaster, the sheriff, the indemnifying bond mentioned in section 309 of the Code of Civil Procedure. That section defines and provides for an undertaking, which is for the benefit of the sheriff. The furnishing such an undertaking to the sheriff may be a prerequisite to an action against him, but it is not to an action against the defendants.

4. It is claimed that the complaint does not state a cause of action in the plaintiff, because there is no allegation of an assignment of the undertaking either to McMaster or to the plaintiff. That point has already been decided otherwise by this court in Lomme v. Sweeney, 1 Mont. 584, affirmed in 22 Wall. 208.

5. It is further claimed that the undertaking sued upon is not a statutory undertaking; that, if good at all, it is good only as a common-law obligation; and that the case of Lomme v. Sweeney is not an authority in point; and that, the undertaking being good only as a common-law obligation, an allegation of assignment was necessary. The statute (section 157 of the Civil Code) contains the condition referred to in these words: "For the prosecution of the action without delay and with effect." The undertaking provides "for the prosecution of the action," omitting the words "without delay and with effect." The undertaking contains a condition which is more favorable to the defendants. It in no way enlarges the liability of the defendants, as fixed by the statute. It contains nothing that the statute does not require, and is therefore to be governed by the same rules as any statutory undertaking, and the case of Lomme v. Sweeney controls. See Murfree, Off. Bonds, § 191, and cases cited.

6. It is claimed that the complaint is defective, because it does not contain any allegation that the undertaking was ever delivered. The complaint alleges merely that the plaintiff in the replevin action "executed to said coroner an undertaking," but it does not allege a delivery thereof. The appellant claims that, inasmuch as the law requires all such undertakings to be filed, such filing is a sufficient delivery. Undoubtedly that is the rule where it appears from the complaint that such filing was had. See Holmes v. Ohm, 23 Cal. 268. In that case the undertaking sued on was copied in full in the complaint, with the indorsement thereon, showing that the undertaking was properly filed. In the case we are considering a copy of the undertaking is attached as an exhibit to the complaint, and made a part thereof; but it does not appear in the complaint, or upon a copy of the undertaking, that the latter was ever filed. We cannot presume that the indorsement of filing was on the original. There being no allegation of a delivery of the undertaking to any person whatsoever, the complaint, in this respect also, is defective. See Garcia v. Satrustegui, 4 Cal. 244.

The judgment of the court below is affirmed, with costs.

(6 Mont. 345)

HEDDERICK V. POUTET and another, Copartners, etc., and others.
(Supreme Court of Montana. January 19, 1887.)

1. REPLEVIN-REDELIVERY BONDS-COMMON-LAW BOND-REV. ST. MONT. PAGE 69, § 163. Although a bond signed by defendants in replevin as principals, and two other persons as sureties, for a redelivery of the property replevied, is not in compliance with Rev. St. Mont. p. 69, 163, which requires an "undertaking signed by two or

more sufficient sureties," the statute not requiring the principals to sign the undertaking, yet it is a good common-law bond, and, not being prohibited by statute, nor against public policy, an action may be maintained thereon upon failure of the defendant in replevin to comply with the terms of the judgment in the replevin suit.

2. SAME PLEADING ASSIGNMENT OF BOND TO PLAINTIFF.

It is not necessary to allege in the complaint the assignment of such a bond, by the officer in whose favor it is made, to the plaintiff.

3. SAME-FILING BOND WITH CLERK.

The failure to file a redelivery bond with the clerk of court does not defeat the right to recover thereon.

Appeal from district court, Dawson county. Action on a redelivery bond. On demurrer. Strevelle & Garlock, for appellant, Hedderick. ents.

No appearance for respond

GALBRAITH, J. This is an appeal from a judgment rendered in consequence of a demurrer sustained to the complaint. The complaint alleges the following facts: The respondent had formerly commenced his action in claim and delivery against Taylor and Hall, for certain personal property. Taylor was the sheriff of Dawson county, and therefore the summons was placed for service in the hands of the coroner, who served the same on the defendants, Taylor and Hall, and took the property into his possession. Before the time had matured for the delivery thereof to the plaintiff, Taylor and Hall demanded a redelivery of the property to themselves. For this purpose they executed the following bond:

"TERRITORY OF MONTANA, COUNTY OF DAWSON, SS.-IN DISTRICT Court. "George W. Hedderick, Piff., vs. James Taylor and Ira Hall, Defts. "Know all men by these presents that we, Poutet & Gallagher as principals, and W. S. Hurst, William Lowe, and John Lee as sureties, are held and firmly bound unto Andrew R. Duncan, coroner of Dawson county, in the sum of twenty-five hundred dollars, ($2,500,) for the payment of which we firmly bind ourselves, our heirs, executors, and assigns. The conditions of this obligation are such that, if the bounden Poutet & Gallagher shall return to the above-named plaintiff the property described in the affidavit of said plaintiff, or the value thereof, if a return be adjudged, and pay all costs that may be awarded against them in the said action, then shall this obligation be null and void; otherwise in full force and effect.

"In witness whereof we have hereunto set our hands and seals this twentyfourth day of April, A. D. 1884.

[Signed]

"POUTET & GALLAGHER. [Seal.]

"W. S. HURST.

"WM. LOWE.

"JOHN LEE."

Seal.

The affidavit of justification of sureties required by law was appended to this bond.

Upon the delivery of this bond, the property was delivered to Taylor and Hall by the coroner. Subsequently the action was changed from Dawson county to the county of Custer for trial, and, after a trial, a verdict was returned in the district court of the latter county for the plaintiff, Hedderick. Judgment was rendered upon this verdict for a return of the property described in the foregoing bond, or, in case a delivery thereof could not be had, for the value thereof as found by the jury, with interest and costs of suit. An execution was then issued upon this judgment, which was returned wholly unsatisfied. None of the property was ever returned, nor the judgment paid, nor any part thereof.

The demurrer was only upon the ground "that said complaint does not state facts sufficient to constitute a cause of action." The respondent contends that the court properly sustained this demurrer, for the following reason: "That it is not the character of obligation required by the statute, and therefore it is not binding upon the obligors."

Our statute entitled "Claim and Delivery of Personal Property" is as follows: "At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against the defendant." Rev. St. p. 69, § 163.

This section provides that the undertaking is to be executed only by the sureties. The words "they are bound" evidently refers to the sureties, and it is intended that they are bound for the delivery of the property to plaintiff when the condition occurs. The undertaking is not required to be signed by the defendant when he seeks the return of the property. In Pierse v. Miles, 5 Mont. 549, S. C. 6 Pac. Rep. 347, even where the statute required "a written undertaking on the part of the plaintiff, with two or more sufficient sureties," this court held that the undertaking need not be signed by the plaintiff; that an undertaking on the part of the plaintiff means an undertaking for him, or on his behalf; and it is not necessary to the validity of such an undertaking that it be signed by the plaintiff."

There is a much stronger reason for holding, as we do in this case, that the defendant need not sign the undertaking, for the statute provides that the "defendant may * * require the return thereof, upon giving to

*

the sheriff a written undertaking, executed by two or more sufficient sureties." This language requires that the sureties execute the undertaking. But this obligation is not that the sureties shall deliver up the property to the plaintiff, or, in the words of the statute, "that they are bound for the delivery thereof to the plaintiff;" but that Poutet & Gallagher, who signed the obligation as principals, "shall return to the above-named plaintiff the property." The obligation manifestly does not comply with the provisions of the above section in this respect. It differs from the undertaking required by the statute, in that it is a bond signed by persons as principals who are parties to the proceedings, and providing that such principals, and not the sureties, are bound for the delivery of the property to the plaintiff, if the condition occurs.

But, notwithstanding that this is not the undertaking which the law requires, the question arises, can the plaintiff nevertheless recover on this obligation in this action? Bonds or obligations of this character are of the same general nature, subject to the same legal rules and incidents, as what are termed official bonds; "and in like manner bonds which by law are required to be executed under certain circumstances in the course of judicial proceedings, such as indemnity, delivery, replevin, and appeal bonds, all fall within the general description of official bonds; in short, all bonds are official bonds' which are prescribed by statute, or of which either the obligor or obligee is a public officer, and the subject-matter of the condition is either the discharge of public duty, or proceedings of a public character in a court of equity." Murfree, Off. Bonds, § 36.

The legal rules and incidents relating to official bonds are applicable to the obligation in question, which is what is generally called a delivery bond. Such a bond; when it does not violate a statute or contravene public policy, although it may be invalid as a statutory bond or undertaking, may, nevertheless, be good as a common-law obligation.