Hathaway v. Davis

Sawyer, J., dissenting:

The undertaking upon which a recovery is sought is that the appellants will pay all damages and costs which may be awarded against defendant on the appeal, not exceeding three hundred dollars.” This appears to me to be an undertaking that another party shall pay, and not that the party himself will pay. There is no promise that the defendants themselves will pay any money at all, and consequently no contract on their part for the direct payment of money. On a failure of the appellants in the suit to pay in accordance with the terms of the undertaking, there is a breach, it is true, and the party to the undertaking is liable for damages for the breach. But the liability is strictly for damages, and not on his own con- ' tract that he himself will pay money.. For these reasons I think there was no contract, express or implied, on the part of the defendant for the direct payment of money within the meaning of the Attachment Law, and that an attachment is unauthorized.