An attachment issued in an action of assumpsit may be the basis of an ancillary proceeding in the cause; but prior to Chapter 8477, Acts of 1921, an attachment issued in aid of foreclosure when there is a perfected lien, was not the basis of an ancillary proceeding. It was merely a statutory chancery writ that could not be dissolved as at law, and though a bond given by the defendant in the foreclosure proceedings is conditioned to "have the property forthcoming * * * and abide the final order of the court," as prescribed by statute for forthcoming bonds in attachment proceedings in law actions, yet as there is no ancillary proceeding in the foreclosure action, the only "final order of the court" to which the bond could refer is the final order in the foreclosure action.
The holding of the court in this action on the bond is that the unauthorized dissolution of the attachment in the statutory foreclosure action did not affect the liabilities of the sureties on the bond given by the defendant conditioned to have the property forthcoming "and to abide the final order of the court," the only final order to which the bond could in law refer being the final order in the statutory foreclosure action there being no ancillary attachment proceedings *Page 298 in such action, the writ of attachment when issued in aid of foreclosure being merely a statutory chancery writ and not a part of an ancillary proceeding as it is when issued in ordinary actions at law.
TERRELL AND STRUM, J. J., concur.