When a rehearing was granted, we had overlooked a clause in section one hundred twenty-three of the Practice Act, as amended in 1860, and were under the impression that sections one hundred thirty-six and .one hundred thirty-seven controlled the case.
Section one hundred twenty-three of the Practice Act pro*199vides that the writ of attachment shall be directed to the Sheriff, etc., and requires him to attach and safely keep all the property of the defendant, etc., “ unless the defendant gives him security by the undertaking of at least two sufficient sureties to satisfy such demand, besides costs; or in an amount egual to the value of the property which has been or is about to be attached, in which case to take such undertaking.” The undertaking, then, if sufficient and answers the requirements-of the statute, is to be takeri when the property “ has been ” as well as when it “is about to be attached.” The undertaking required by the statute is to be taken instead of the property of the defendant, and is for the benefit of the plaintiff, who is the party in interest, and not for the protection of the Sheriff. It is the mode prescribed by the statute for securing the demand pending the action. If the Sheriff takes a sufficient statutory undertaking his duty in the premises is discharged, and he has no further responsibility in the matter. The rest concerns the plaintiff and the sureties on the undertaking. It only remains to be determined whether the instrument in suit fulfils the requirements • of the statute. It was evidently intended to be—and we think it substantially is—a compliance with the provisions of section one hundred twenty-three. It is under seal and in the form of a common law bond with a condition. But the statute does not prescribe the form of the instrument. It is to be an undertaking, and an undertaking is an engagement by one of the parties to a contract to the other, and not the mutual engagements of the parties to each other. Thei;e is necessarily an engagement by the party on one side only. (Bouv. Law Dic., 611.) It may be under seal in the form of a common law bond, or without seal in any form that substantially expresses the obligation required by the statute. (Episcopal Church of St. Peter v. Varian, 28 Barb. 645 ; Conklin v. Dutcher, 5 How. Pr. R. 388 ; Town of Guilford v. Cornell, 4 Abb. 220.) The sureties undertake that the judgment shall be paid, including costs, to the extent of two thousand five hundred dollars. There is no complaint made that this amount is not equal to the value of the prop*200erty attached. We think the undertaking a substantial compliance with the statute. That being so, it is an obligation in favor of plaintiff in the,action, notwithstanding it runs in the name of the Sheriff. The plaintiff is the real party in interest, and he may sue upon it as such. Section one hundred thirty-four provides that “ If the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section one hundred twenty-three.” It was so held in relation to a bond under seal, running in the name of the State of California, given to procure an attachment under section one hundred twenty-two, where there was no such express provision as is contained in section one hundred thirty-four. (Taaffe v. Rosenthal, 7 Cal. 515; see, also, Baker v. Bartol, 7 Cal. 553.) The tender was made to the plaintiff, the real party in interest, and discharged the sureties. And for the purpose of discharging the sureties it was unnecessary that the tender should be kept good. The judgment rendered on the former hearing was correct.
Order denying a new trial affirmed.