Ry the Court, Sebastian, J. The question, which is mainly presented by the record in this cause is, whether the giving bond by the defendants, to obtain the restoration of property attached, precluded him from pleading in abatement the want of a sufficient attachment bond. In Didier vs. Galloway, 3 Ark. Rep. 501, it was expressly ruled, that the want of a bond, or of a bond in pursuance of the statute, was pleadable in abatement to the whole suit.
It is a condition precedent to the suing forth the writ, intended to afford the opposite party ample redress for any injury which may result from its abuse, or improper exercise, by the plaintiff. Without it the party is not rightfully in court, and it is to be-regarded as in the nature of a personal disability of the plaintiff to sue; and to be pleaded at th& proper term and in proper order.
It is contended that the entering into, special bail, by the dc(pndant, precluded him from pleading the want of a sufficient attachment bond in abatement. We think it has no such operation.
The language of the statute is, that “the attachment shall be released, and the suit proceed as other suits at law.” By the release of the attachment, the property attached is restored to the possession of the defendant, and his bond substituted, in contemplation of law as an ample equivalent to the plaintiff for tire release of the attachment.
The statute confers a personal benefit on the defendant by enabling him to relieve himself of the more onerous consequences of the attachment, in the loss of the use and possession of his property. The bond is thus substituted for the property, and in a different form is one of the legitimate consequences of the attachment.
This bond compels the defendant to appear and answer the plaintiff's demand, &c., “and in such case the suit proceeds as in other actions at law.” Now, in the event no bond be given, then, in case of his appearance, by section 15, “he may plead to and defend such action as other suits at law.” But the property attached shall remain in the possession of the sheriff subject to the disposition of it by law. By these provisions, no difference is created in the rights of the defendant.
In one case, he binds himself to appear and to “answer the plaintiff’s demand,” in the other, he is authorized to “plead to and defend such action” as in other suits at law. We can therefore see no reason why the defendant should not be warranted in pleading, in abatement, as well where he has given such bond, as where he has not. The language of the statute, in one case, does not exclude it in stronger terms, than in the other, and in the case before cited, it was held he might plead it.
By the provisions of the statute, section 6, both the bond and affidavit are made prerequisite to the issuing of the writ, and upon a failure to file either one or the other, the defendant can take advantage of the defect. He cannot however, except to the affidavit, without pleading to the action, (see sec. 29) and when his exception is sustained, it operates as a dissolution of the attachment, restoration of property taken, discharge of garnishee, &c. And the common appearance of the defendant is accepted.
In this case, the defendant is precluded from pleading in abatement, by the terms imposed upon him by the statute. The exceptions to the affidavit in such case, only affected the consequences of the attachment, but did not abate the suit. It leaves the bond just as important as before. So it is by the giving of special bail, which only substitutes the bond for the property, and the attachment bond is necessary to the whole suit.
It is necessary as a means of indemnity to the defendant for the wrongful suing out the attachment: it is still necessary after the property attached has been restored, to cover such damages as accrued by the caption and detention of the property until its restoration to the defendant. If it is such a bond as is defective, for that purpose, the plaintiff should not have the advantage of this suit. The restoration of the property cannot therefore operate as a release of the bond for the attachment.
This would enable the plaintiff to perpetrate a wrong, and take advantage of it, by imposing upon the defendant the necessity of giving special bail, to obtain a release of the attachment. We therefore think it was competent for the defendant to plead the want of a sufficient attachment bond in abatement, after he had given special bail to the sheriff. .
The bond in this case was not such as is required by the statute, and as the defendant has saved the point in his exceptions, the judgment of the. circuit court must be reversed, and a new trial awarded.
Loading…