tion of the bond is to pay whatever judgment is obtained against the plaintiff, whereas the statute provides for a re-delivery bond in the usual form.1 178 So also, where the statute provides for a release of attached property on the giving of a bond but requires an order of court as a preliminary condition, the failure to secure the order of court will not invalidate the bond. 179 No recovery can be had on a forthcoming bond unless the property is actually delivered to the defendant in accordance with the terms of the bond. Thus where the sheriff immediately seizes the property released under another attachment, 180 or retains the property because of the insufficiency of the sureties. 181 Where by mistake the bond was written conditioned for the dissolution of the attachment, although intended as a forthcoming bond and the property released to the defendant, it was held that no recovery could be had on the bond, since the attachment was not in fact dissolved." 182 $219. Bonds to discharge attachment. A bond to dissolve or discharge an attachment is a final disposition of the attachment proceeding and is a substitution of the security of the bond for the lien acquired on the property. A motion to dissolve the attachment is no longer necessary after the filing of such bond and if such motion is pending, the bond operates to dismiss it, since the attachment being dissolved by the bond, leaves nothing upon which an order of the court can operate. The obligors on such bond are bound unconditionally to perform the judgment of the court, and they constructively admit 178 Wright vs. Keyes, 103 Pa, 567. 179 Sullivan vs. Williams, 43 S. C. 489; 21 S. E. 642. 180 Schneider vs. Wallingford, 4 Col. App. 150; 34 Pac. 1109. See also Eddy vs. Moore, 23 Kas. 113. 181 Cortelyou vs. Maben, 40 Neb. 512; 59 N. W. 94. 182 Edwards vs. Pomeroy, 8 Col. 254: 6 Pac. 829. the validity of the attachment, and will be bound whether the attachment was valid or not.' 183 Where the attachment is void by reason of a prohibition of law, the bond to dissolve the attachment is also void. If the attachment is illegal because prohibited by law the bond which takes its place must also be invalid. If the attachment is a nullity then the bond purporting to dissolve the attachment is a nullity, as there is no attachment to dissolve.184 183 Hazelrigg vs. Donaldson, 59 Ky. 445; McMillan vs. Dana, 18 Cal. 339; Bowers vs. Beck, 2 Nev. 139; Ferguson vs. Glidewell, 48 Ark. 195; 2 S. W. 711; Smith vs. United States Express Co., 135 Ill. 279; 25 N. E. 525; Schuyler vs. Sylvester, 28 N. J. L. 487. But see Shevlin vs. Whelen, 41 Wis. 88. The execution of a bond to discharge the attachment releases the sureties upon the original attachment bond from all liability. Bick vs. Lang, 15 Ind. App. 503; 44 N. E. 555. 184 Pacific National Bank vs. Mixter, 124 U. S. 721; 8 S. Ct. 718. This was an action against a National Bank with a seizure by attachment and a subsequent bond to discharge the attachment. Sec. 5242 of the Federal Statute provides that "No attachment, injunction, or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court." Waite, C. J.: "We are, therefore, of opinion that the attachments in all the suits were illegal and void, because issued without any authority of law. But it is insisted that notwithstanding this bonds are valid and may be enforced. It is undoubtedly true that the sureties on a bond of this kind are estopped from setting up, as a defense to an action for a breach of its condition, any irregularities in the form of proceeding to obtain an attachment authorized by law which would warrant its discharge upon a proper application made therefor. As the purpose of the bond is to dissolve an attachment, its due execution implies a waiver both by the defendant and his sureties of all mere irregu larities. So, too, it is no defense that the property attached did not belong to the defendant, or that it was exempt, or that the defendant has become bankrupt or is dead. In all such cases, where there was lawful authority for the attachment, the simple question is, whether the condition of the bond has been broken; that is to say, whether there has been a judgment in the action against the defendant for the payment of money which he has neglected for thirty days afterwards to make. In the present case, however, the question is whether the bond creates a liability when the attachment on which it is predicated was actually prohibited by law. In other words, whether an illegal and therefore a void attachment is sufficient to lay the foundation for a valid bond to secure its formal dissolution. The bond is a substitute for the attachment, although not affect Where there was a substitution of a new party defendant after the execution of a bond to dissolve the attachment, it was held that the surety was not liable for the judgment rendered against the new defendant, 185 Also where new parties were added as co-defendants it was considered that the nature of the obligation had been changed and the sureties released." 186 §220. When action accrues upon bonds in attachment. A judicial determination that the order of attachment was wrongfully issued, constitutes a breach of the condition of the bond to procure an attachment. A judicial determination that the attachment was rightfully issued coupled with a judgment against the defendant, is a breach of the condition of a bond to release property from the attachment, and where a bond is given to dissolve an attachment, a final judgment against the plaintiff is a breach of the bond. The question as to what amounts to a determination of the matters necessary to constitute a breach of a bond given in attachment proceedings has become somewhat complicated by the slight variations in the statutes which authorize the giving of the bonds, It has been strongly contended that the term "wrongful" used in the statute, relates only to cases in which it is shown that the party resorted to the remedy by attachment without sufficient ground, and that no action accrues on the bond where the attachment is dismissed for want of prosecution, or for omissions and informalities in the proceedings not affecting the ed by all the contingencies which might have discharged the attachment itself. Carpenter vs. Turrell, 100 Mass. 450, 452; Tapley vs. Goodsell, 102 Mass. 176, 182. Such being the case, it necessarily fol lows that if there was no authority in law for the attachment, there could be none for taking the bond. If the attachment itself is illegal and therefore void, so also must be the bond which takes its place." See also Planters Loan & Savings Bank vs. Berry, 91 Ga. 264; 18 S. E. 137. 185 Richards vs. Storer, 114 Mass. 101. 186 Furness vs. Read, 63 Md. 1. merits, or where there is mer ly a judgment against the plaintiff on the claim, without any adjudication of the grounds of attachment. 187 The rule has been distinctly asserted that a wrongful attachment can not be inferred from a voluntary dismissal of the action,188 and that the mere fact that the attachment has been dissolved does not establish a liability against the bond without a specific determination that the writ was wrongful.' 189 190 The better reasoning seems to support the contrary view, which by analogy to the right of action upon injunction bonds,' is that a voluntary abandonment of an attachment proceeding must be deemed an admission that it is wrongful, for otherwise, even if wrongful in fact, the defendant would be without remedy as he is deprived of an opportunity to secure an adjudication dissolving the attachment.191 The failure of the attaching plaintiff to sustain his action, is at least prima facie evidence that the attachment is wrongful, even without any adjudication on the merits of the attachment. 187 Sharpe vs. Hunter, 16 Ala. 765. In this case the attachment was dismissed for informalities in the affidavit, and in an action upon the bond it was held that the dismissal of the attachment is not a judicial determination that the attachment was wrongful. The Court said, "What is meant by the term 'wrongful,' as used in the statute to which this bond conforms? Was it, as is contended, designed to apply to defects in the form of the proceeding, on account of which the attachment should be quashed, as well as to the ground upon which it was to be issued? Or was the object of the framers of the act merely to provide a remedy against persons who should resort to this extraordinary remedy to the prejudice of another without cause or sufficient ground therefor? We think that, by the wrongful suing out of the attachment, is meant, not the omissions, irregularities or informalities which the officer issuing the process may have committed in its issuance, but that the party resorted to it without sufficient ground." See also Calhoun vs. Hannan, 87 Ala. 277; 6 South. 291; Petty vs. Lang, 81 Tex. 238; 16 S. W. 999; Blanchard vs. Brown, 42 Mich. 46; 3 N. W. 246; Boatwright vs. Stewart, 37 Ark. 614. 188 Nockles VS. Eggspieler, 47 Iowa 400; Rachelman vs. Skinner, 46 Minn. 196; 48 N. W. 776; Pettit vs. Mercer, 8 B. Mon. (Ky.) 51. 189 Storz vs. Finklestein, 48 Neb. 27; 66 N. W. 1020. 190 Ante Sec. 210. 191 Steinhardt vs. Leman, 41 La. Ann. 835; 6 South. 665; Hollingsworth vs. Atkins, 46 La. Ann. 515; 15 South. 77; Jerman vs. Stewart, 12 Fed. Rep. 266. There are also good grounds for holding that the sureties are concluded by such judgment against the plaintiff, for an attachment can not be otherwise than wrongful, if the plaintiff has no claim.192 A dismissal of an attachment by reason of a failure of an officer to perform his duty raises no presumption of wrongful suing out, 193 An attachment issued upon a defective affidavit is equally burdensome upon the defendant, as if the affidavit had been formal. A party has a right to require that the forms of law be strictly observed in all proceedings to which he is a party. An attachment upon a defective affidavit is wrongful in more than a technical sense, since the defendant should not be required to waive the formal defects in order to get a hearing upon the merits of the attachment. The rule that a dissolution of the attachment for cause other than on its merits is not a breach of the bond comes to this. If the defendant waives the irregularities and invokes a judicial determination of the ground of attachment, and thereby secures a dismissal, he may recover his damages on the bond, but if by requiring an observance of the forms of law in the matter of procedure, the attachment on his motion is dismissed, he waives his damages, since he thereby fails to get a dissolution on the merits of the case, which is deemed essential to an action on the bond. 194 No action upon a forthcoming bond accrues until a final disposition of the case, even though the attachment has in the meantime been sustained.15 But action can be prosecuted upon the bond to procure an attachment whenever it is finally determined that the writ is wrongful. This may occur before final judg 11. 192 Harger vs. Spofford, 46 Iowa 193 Offterdinger vs. Ford, 92 Va. 636; 24 S. E. 246. 194 Lobenstein VS. Hymson 90 Tenn. 606; 18 S. W. 250. In this case the attachment was dismissed for defective affidavit and the action brought on the bond to recover damages for wrongful attachment, and it was held that the defense could not be interposed that good grounds for the attachment existed. 195 Hansford "s. Perrin, 6 B. Mon. (Ky.) 595. |