Page:North Dakota Reports (vol. 1).pdf/329

 The rules of construction heretofore used by this court in passing upon the effects of a bond by the defendant to dissolve an attachment upon his right to attack the attachment proceedings are not, therefore, applicable to a dissolution bond executed under the Code, the reason having ceased to exist.” This case is directly in point, the court holding that the defendant and sureties were precluded from asserting that the attachment was improvidently issued; even though after the execution of the bond the writ had been vacated on motion. The discharge can have no effect at all if it does not affect the bond. The court held that there was in fact no attachment to discharge, saying: “Section 337 as we have seen, provides that the defendant may discharge the attachment by giving bond that he will perform the judgment of the court. How can the attachment be sustained or discharged after the defendant has discharged it by giving the bond ?”

The decision in Lehman v. Berdin, 5 Dill. 340, was simply the adoption of the prior ruling by the state by the federal court, as was indeed its duty. These rulings were sound, as was the decision in Love v. Voorheis, 13 La. Ann. 549, where the statute provided that the giving of the bond should operate not to discharge the attachment, as in this state, but merely release the property from the levy. Right here lies the fallacy of appellant’s reasoning. He repeatedly asserted that the statute gives him the right to move at any time before judgment. But this provision necessarily presupposes an existing attachment to be assailed and overthrown. The right to strike down the writ by litigation certainly cannot be exercised after the suitor has voluntarily supplanted the writ as well as the levy by giving the statutory discharge bond. - The right to move to discharge the attachment any time before judgment will not warrant the court in reviving the writ which the defendant by rebonding has already discharged. The authorities fully sustain our position. The cases here cited are not all directly in point, but they are all in harmony with our views, and some are express authority for our position: Dierolf v. Winterfield, 24 Wis. 143; Wolf v. Cook, 40 Fed. Rep. 438; Austin v. Burgett, 10 Iowa, 302-304; Allerton v. Eldridge, 10 N. W. Rep. 252; Hill v. Harding, 93 Ill. 80; Bunneman v.