I dissent from the judgment. I am of opinion that the complaint is fatally defective in not showing affirmatively that the writ issued in a proper case under the statute, and upon proper proceedings before the Clerk. The writ is a special remedy, allowed only in specific cases, and is issued by a ministerial officer, and I am unable to perceive why the rules of pleading in cases where a right is asserted from a special jurisdiction, do not apply. (See cases cited in Respondents’ Brief.)
On petition for rehearing, Baldwin, J. delivered the opinion of the Court—Cope, J. concurring.
The petition for a rehearing is refused.
1. The expressions of the opinion are to be limited to the case before the Court. When we spoke of the effect of an undertaking as similar to that of a bond, we spoke, of course, of an undertaking taken in pursuance of the statute—for it was of a statutory undertaking that the observations were made. The record presented the question upon the complaint, which averred that the undertaking was made after an attachment, upon the order of the Judge.
*349Whether a mere formal variation from the regular statutory course would make any difference in the rule, it is not necessary to determine; for no point was made or fact alleged as to such variation.
2. We think that it does not rest with the defendants to say that the property attached, if any was, was not subject to levy; for the condition is to answer the judgment; and no collateral inquiry can be made as to the fact of the levy or of the property being subject to it. This has been often decided in the case of forthcoming bonds in several States of the Union. It is not uncommon in Kentucky, Virginia and Alabama to give bonds for the delivery of property merely fictitious in order to stop the execution of a fi fa; but it has been held that the parties executing the bond were stopped to deny that the property was levied on and subject to levy. The condition here is, that the obligors will pay the judgment in consideration of the discharge of the attachment; and if the undertaking be regular it is not at all important whether the property be leviable or not; for by the contract the parties have bound themselves to pay in an event independent of all considerations of this sort.
3. What we said in reference to the conclusive effect of the recitals, was upon the hypothesis that this was a statutory undertaking ; and to that opinion we adhere. The question fairly arose upon the pleadings, and our judgment upon that matter remains unaltered.
4. We said nothing as to the effect of the plaintiff’s conduct in interfering with the release of the property by the Sheriff; and if any matters of defense of this sort exist, the defendants can still insist on it.
The Court below may grant on the return of the cause, any proper amendments to the pleadings that may be necessary to present the case fairly on the merits. And we here remark that under the liberal provisions of our Practice Act, Courts should allow amendments with great liberality at any stage of the proceedings before trial, when required—seeing that no injurious delays are occasioned, and that the matter of the amendment is essential to a fair trial on the legal merits of the case.