Page:North Dakota Reports (vol. 1).pdf/331

 apparent from the syllabus: “Attachment may be dismissed for defective affidavit after replevy bond has been given. The security in the replevy bond is not bound if the property was not bound. A void attachment will neither uphold the levy nor a bond given to support the levy.” There is a manifest difference between a void attachment and one which may be set aside because improvidently issued. A void attachment will not support a discharge bond, because there is nothing for the bond to rest upon. A valid attachment which may be vacated because the affidavit is false will support such a bond. We will discuss this question and the appellant’s contention that the attachment was void in a subsequent portion of this opinion.

The Ohio case (Egan v. Lumsden, 2 Disn. 168) cited by appellant does not express the rule in that state. Myers v. Smith, 29 Ohio St. 123. This later and higher decision supports the respondent’s view. There is, in fact, no authority to support the appellant’s position under the same statute, the strongest case ( Bates v. Killian, 17 S. C. 553) being a decision of a jurisdiction having no forthcoming bond, and providing no other means by which defendant could secure possession of his property except by giving the bond, the effect af which, it was claimed, was to bar defendant's right to assail the attachment affidavit. It ison the ground of the absence of the right to give such a bond that the appellant is strenuously insisting upon the hardship of the construction for which respondent contends; and the supreme court of Arkansas in Ferguson v. Glidewell, 2 S. W. Rep. 711, lays considerable stress on the fact that since the last decision in that state the right to give such a bond to secure his property has been conferred upon the defendant by statute. As we regard the statute in our own state, the bond it provides for is still more favorable to the defendant, as it enables him not merely to become the custodian of the property subject to the lien of the attachment, but to release his property from such lien absolutely. This was the construction given the same statute in California. Curiac v. Packard, 29 Cal. 194. This construction does away with the criticism of Chief Justice Cockrill, in Ferguson v. Glidewell, 2 8. W. Rep. 711-718, that the right to give a forthcoming bond was not sufficient to pro-