
    A. G. Couse v. Ira W. Phelps.
    January Term, 1874.
    Attachment: Bail Bond: Action on: Pleading. In an action on an undertaking given by the defendant in an attachment case, to secure the release of the attached property, it is necessary to aver that the attached property was restored to the defendant, or a demurrer to the petition will be sustained.
    Error from Saline district court.
    Phelps brought suit against Couse, on an undertaking executed by Couse, as surety for one Bayers, to enable Bayers to obtain a return of property seized on an order of attachment issued in an action brought by Phelps against Bayers. To the petition in this case Couse demurred. The district court, at the November term, 1872, overruled the demurrer.
    
      Mohler & Garvey, for plaintiff in error.
    
      McClure & Humphrey, for defendant in error.
   Brewer, J.

This case is disposed of by the decision in McGonigle v. Gordon, 11 Kan. *167. It was there decided that “in an action on an undertaking given by the defendant in an attachment case, to secure the release of the attached property, it was necessary to aver and show by the evidence that the attached property was restored to the defendant, or there could be no recovery on the undertaking.” This was *an action on such an undertaking, and the petition did not allege any restoration of the property to the defendant. Hence the demurrer should have been sustained; and the judgment of the district court is reversed, and the ease remanded,, with instructions to sustain the demurrer.

(All the justices concurring.)  