(dissenting) — -I cannot concur in the holding of the majority opinion, to the effect that a defendant in whose favor a judgment has been rendered upon the merits, in an action brought against him to recover an alleged debt wherein the plaintiff has given the usual bond and caused an attachment to be issued and property of the defendant seized thereunder, waives his right to sue upon the attachment bond for actual damages resulting to him from such seizure, by the giving of a redelivery bond and thereby recovering possession of his property.
In my opinion the authorities cited, as well as the numerous, citations in Brady v. Onffroy, 37 Wash. 482, 79 Pac. 1004, go no farther than to support a holding to the effect, that when a redelivery bond is given, the defendant and his sureties thereby waive the right to question the attachment proceedings in that case or in any proceeding wherein a ¡judgment rendered against defendant in that case is sought to he enforced. But it does not follow that when the defendant successfully resists plaintiff’s claim upon the merits and judgment is rendered accordingly, as is here alleged, he has waived actual damage caused by the seizure under the attachment, by the giving of redelivery bond and reclaiming his property.
The theory of the decisions seems to be that, if the defendant has any cause to show why the attachment should *205not have been sued out, he should present it in some form, by-motion or otherwise, in the attachment suit, before giving a redelivery bond, which is a voluntary substitute for the attachment. No doubt this is sound as applied to all lawful objections to the attachment then available to the defendant, but a motion to discharge an attachment cannot be supported by denying the existence of the debt; that goes to the merits of the cause and of necessity can only be determined upon the trial. Nothing, it seems could more conclusively show that the attachment was wrongfully sued out than a judgment against the plaintiff upon the merits (é Cyc. 835) ; yet until trial upon the'merits the defendant has no means of showing that there is no debt upon which the attachment is based. The defendant may be greatly damaged by the seizure (though whether much or little does not affect the principle involved) before he secures the return of his property through a redelivery bond, and he is not limited as to the time of so reclaiming his property, save by the rendering of a judgment against him. There is sound reason for holding that the giving of a redelivery bond is in effect an admission of the regularity of the attachment so far as defenses to the attachment■ proceedings then available to defendant are concerned. But it certainly cannot be said that the giving of a redelivery bond' is a waiver of all actual damage on account of the wrongful attachment, when such wrongfulness results from the nonexistence of the debt alleged as a basis of the attachment, when such fact cannot be invoiced to show the wrongful suing out of the attachment until the original suit has been determined in defendants’ favor upon the merits. I therefore dissent.
Dunbar, J., concurs with Parker, J.