majority"> James C. Smith, J.

The sole question in this case is, whether the court erred in rejecting the testimony offered by the defendant. One branch of the offer was to show in contradiction the recitals in the undertaking, that no application had been made for the discharge of an attachment in the action in which the undertaking was entitled, and that no attachment had been issued or granted. The counsel for the applicant argues that the defendants were not estopped *380from thus showing the falsity of the recital, for the reason that, as the counsel assumes, the plaintiff did not rely upon the faith of the facts recited, or upon the delivery of the undertaking, and was not thereby induced to do anything which he would not have done, or to refrain from doing anything which he would have done but for the undertaking.

But the assumption is not warranted by the facts of the case as proved, or offered to be proved. If in truth, no attachment was issued, it may have been for the very fact that the plaintiff relied exclusively upon the delivery of the undertaking, and was induced by it to forbear taking out an attachment and seizing the property of the company. He had commenced an action, and for aught that appears, the case was a proper one for issuing an attachment.

It was not essential to the validity of the undertaking, that the plaintiff should compel its execution by actually suing out an attachment and making a levy, It was competent for the parties to the action to waive, if they chose, the issuing of an attachment and a seizure of property under it, and for the defendant to give, and the plaintiff to accept, in consideration of the waiver, such an undertaking as the defendant would have been required to give in an application to discharge an attachment actually issued and levied. By such arrangement the plaintiff would have been debarred from suing out another attachment and procuring other security from the defendant in the same action, and the defend- " ant would have been estopped from repudiating his undertaking.

"We are not to assume, without proof, that the undertaking was executed under circumstances which make it void, but the contrary presumption is to be indulged, if it is consistent with the testimony given and the testimony offered. Although the statute under which the proceeding was had, contemplated that the giving of such undertaking shall be preceded by the issuing of an attachment, and shall accom: pany an application to discharge it, and also directs that the undertaking shall be delivered to the court or officer, the non-compliance with those provisions is but an irregularity *381which the defendant inay waive; and the fact of his putting in an undertaking, which recites that an attachment had been issued, and that he was about to apply for. its discharge, is conclusive evidence of such waiver. It is enough that the undertaking is binding between the principal parties, under such circumstances, to hold the sureties.

' Many cases may be supposed, in which it would be to the interest of the defendant to make such an arrangement, for the purpose of avoiding expense, annoyance or damage to his credit, by the publicity of a levy. It cannot, therefore, be assumed that the plaintiff did not rely upon the delivery of the undertaking, and was not induced by it to refrain from suing out an attachment and making a levy; and if he did thus rely upon it, the defendants were estopped from contradicting its recitals.

There is a plain distinction between the present case, and one where an undertaking is given to procure the discharge of an attachment which is void for want of jurisdiction of the subject matter. In the latter case, the whole proceeding being a nullity, the undertaking is of no effect whatever, and the sureties when sued on it may defend on that ground.

Of that nature are the authorities for the appellant (7 Barb. 254; 1 Den. 184), but they are not applicable to the case at bar, in which there is no evidence of a defect of jurisdiction. The case, therefore, is not within the rule suggested by the counsel for the appellant, and the offer to show that . the recitals were untrue, was properly overruled.

The ruling was also correct in respect to the offer to show that the defendants were induced to execute the undertaking by the alleged false and fraudulent representations of the agent of the company that the recitals referred to were true. It was not proposed, to prove that the plaintiff made any false representations, or that he was cognizant of, or had any agency in the alleged fraudulent conduct of the secretary of the company.

The defendant executed the undertaking, and placed it in the hands of the" agent of the company, to be delivered by him to the court or officer, for the benefit of the plaintiff *382or (which is the same thing so far as this point is concerned), to be delivered to the plaintiff himself. It having been delivered by the agent as intended by the obligors, and the plaintiff having received it upon a valid legal consideration, and being ignorant of the alleged fraud, and in no way responsible for it, such fraud cannot be set up to deprive him of the benefit of the undertaking.

As upon the hypothesis that no attachment had been issued, the waiver and forbearance, which may be properly assumed in such case, formed a good consideration for the undertaking; the offer to show that there was in fact no pecuniary consideration price, was immaterial.

The judgment should be affirmed.

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