Attachment — Undertaking for Release of Property—Nature of Undertaking — Statutory Obligation.—Under section 540 of the ■Code of Civil Procedure, requiring the sheriff, to whom a writ of attachment is issued, to attach and keep" the property of the defendant unless the defendant give Mm security by an undertaking, with sureties, in an amount sufficient to satisfy the demand, or in an amount equal to the value of the property attached or about to be attached, in wMch case to take such undertaking, an undertaking, given on the release of attached property which by its terms bound the surety to the effect that if the plaintiff, in that action recovered judgment, the surety would, on demand, pay the amount thereof to the plaintiff, was a statutory undertaking, and not a mere obligation to pay the debt in consideration of the release of the obligation.

Id.—Undertaking for Release of Property—Execution and Delivery —Action on Undertaking.—Where attached property is released by a sheriff in the usual way, on the giving of an undertaking in the form required by section 540 of the Code of Civil Procedure, the character of the undertaMng, as a statutory undertaking, is not changed by the fact that it is passed directly to the plaintiff instead of being delivered to the sheriff, and an action on the undertaking is governed by the provisions of section 552 of the Code of Civil Procedure.

Id.—Action on Undertaking for Release — Pleading — Demurrer to Complaint.—A complaint in an action on an undertaking, given to obtain the release of attached property, "which does not show that the remedy by execution has been regularly pursued, and that the execution was regularly returned unsatisfied in whole or in part before the action was begun, is bad on general demurrer.

Id.—Action on Undertaking for Release — Execution Prematurely Returned.—Under section 683 of the Code of Civil Procedure, requiring an execution to be made returnable not less than ten nor more than -sixty days after its receipt by the sheriff, an execution cannot be regularly returned before the expiration of ten days after its receipt by the sheriff.

Id.—Action on Undertaking—Execution Prematurely Returned— Defect, how Curable—Pleading and Proof.—Where issuance and return of an execution are necessary as a foundation for an action upon an undertaking to release an attachment, the defect of a premature return of the execution is curable by proof that the execution debtor in fact had no leviable property at any time within the minimum lawful period for its return, but the party instituting suit on the undertaking must allege and prove that fact, and a complaint on such an undertaking which alleges a premature return of an execution, but is silent as to whether the execution debtor had any leviable property during the required period, fails to state facts sufficient to constitute a cause of action.

Id.—Undertaking for Release—Collusion—Discharge of Sureties.— Collusion, between the defendant and plaintiff in an attachment suit, whereby the plaintiff recovers a larger amount than he is entitled to, will discharge a surety on an undertaking given to release the at-, taehment, whereby the surety undertakes to pay any judgment recovered.

Id.—Appeal—Conflicting Evidence.—In an action against the surety on an undertaking to release an attachment, the supreme court will not interfere with findings by the trial court, on conflicting evidence, against the defense that the plaintiff in the attachment suit, through collusion with the defendant therein, recovered a larger judgment than he was entitled to, and against the defense that he encouraged and permitted the judgment debtor to dispose of his property without satisfying an execution.

Id.—Liability of Surety on Undertaking.—It constitutes no defense to an action against a surety on an undertaking to release an attachment that the attachment was secured by a false affidavit that the attaching creditor’s debt was not secured by any lien, the surety being presumed to be aware of the facts and to have made the contract accordingly, and being therefore not in a position to complain of the attaching creditor’s conduct in bringing the action upon a debt which was secured by some sort of lien upon property, which he might have enforced instead of waiving it and bringing suit for the debt.

Id.—Action on Undertaking to Release — Evidence — Disposition op Property by Judgment Debtor.-—In an action against the surety on an undertaking to release an attachment, evidence of the disposition of goods purchased by the judgment debtor from the attaching creditor and completely delivered to the judgment debtor at the time the judgment was recovered was admissible if offered to show that the judgment debtor had disposed of this property after the issuance of execution against Mm, but if he had disposed of the goods before the execution,, and no collusion was proved between him and the plaintiff relating thereto, the evidence was inadmissible.