Jenner

The complaint shows that the undertaking sued on was executed to procure the setting aside of a judgment, and the release of property theretofore taken on attachment; but fails to allege that the property attached was released, or the judgment set aside, upon the execution of the undertaking. It has been repeatedly held by this Court that such omission renders a complaint substantially defective. (Palmer v. Melvin, 6 Cal. 651 ; Williamson v. Blatten, 9 Cal. 500 ; Nickerson v. Chatterton, 7 Cal. 568 ; The County of Los Angeles v. Babcock, 45 Cal. 252 Curtis v.Richards, 9 Cal. 37 .)

The actual levy of the attachment, and entry of the judgment, by default, were by-gone transactions, to which the sureties were strangers at the time of executing the undertaking. In order, therefore, to support the undertaking, it was necessary to-show some new consideration moving at the time, to wit, the. release of the property, and the setting aside of the judgment. A promise by one man to pay another’s debt is nudum pactum,. without a present consideration. . ( Comstock v. Breed, 12 Cal. 286 .)

The fact that the undertaking is in form a common-law bond does not alter the case. It was given under…