DISSENTING OPINION.
Cockrill, C. J.It has been the settled policy of this court from its first utterance on the subject in 1843, in the case of Delano v. Kennedy, 5 Ark., 457, that a statutory bond given by a defendant in attachment, whatever its nature, does not impair any of his rights of defense. The statute in force when this decision was rendered provided that when the defendant gave bond, the “attachment should be released, and the suit proceed as other suits at law." Secs. 13 and 1%,, chap. 17, Gould’s Dig. But the construction given to it by this court was that the release mentioned in the statute, referred not to the discharge of the attachment itself, but only to its grasp and lien upon the defendant’s property, the bond being construed to stand in lieu of the property. At that day the statute did not permit the plaintiff’s affidavit for attachment to be traversed in any case, whether a bond had been given or not. If it had been permitted at all, it is clear that the execution of the bond to release the attachment would not have cut oft this right, because it was. permissible after executing the bond to question the validity of the attachment in every way it could-be questioned in the absence of a bond; and controverting the grounds of the attachment is only a method of showing its invalidity. The •decisions conforming to this construction are numerous in our reports. The law stood thus until 1867, when it •was so amended as to allow the defendant to put in issue the truth of the plaintiff’s affidavit to procure the attachment. The bond then required of the defendant was said by this act to dissolve the attachment, and like the bond under the former law, was upon the condition that he should “abide and perform the judgment of the court.’’ The leading feature of this act was the same as that of the Code adopted in 1868, but not so broad — namely, the abolition of the indissoluble union of the two parts of the attachment proceeding, which was the distinctive feature ■of the old “ suit-in-attachment.”
By it the attachment became merely ancillary to the suit in personam. Holliday v. Cohen, 34 Ark., 713-14. But the court did not regard this change as in anywise affecting the defendant’s right to defeat the attachment after executing the bond. The very question now before us was presented to this court for determination under the act of 1867, and the previous policy of regarding the defendant’s bond as only standing in lieu of the property that had or might have been seized under the writ, was adhered to, and the defendant was permitted to controvert the truth of the plaintiff’s affidavit, notwithstanding he had executed the bond to dissolve the attachment. This was the case of Ward v. Carleton, 26 Ark., 662. The effect and condition of the bond under that statute was the same as that now before us, except that in the act of 1867 the bond is said to dissolve the attachment, while that now in force uses the-word discharge instead. It will hardly be contended that this change of language was intended to affect the meaning of the statute. It is a rule of construction we have followed, that when a former law which has been construed by this court has been revived or re-enacted, the presumption will prevail that it was intended to adopt with it the meaning the court had engrafted upon it. Applying this-rule, and continuing to read the statute which provides for the dissolving bond in the light of our former decisions, the defendant’s-right to question the validity of the attachment, after giving the bond, by controverting the truth of the plaintiff’s affidavit, or otherwise, is still preserved,.' unless there is some other provision of the statute depriving him of it. It was an easy matter for the legislature to-work the change, if it was thought right to do so, but nothing can be found in the Code that effects it, for unless-you first change our former construction of the provision-providing for the dissolving bond, the other provisions on the subject are readily harmonized with it. The only provision that is thought to influence it is sec. S5Jp of Mansf. Dig., which is taken from the act of 1875. It authorizes judgment against the surety in the dissolving bond when the plaintiff recovers in the action. Its object was to enlarge the plaintiff’s remedy and not to cut oft the defendant’s right of defense. Prior to that act, it was-necessary for a plaintiff who had obtained his judgment in the attachment suit to bring a separate action on the-bond in order to recover upon it. This provision relieved him of the unnecessary cost and delay of a second suit, and authorized judgment against the surety in the bond in 'the first instance. Why should the recovery by the plaintiff-alluded to in the act be construed to have a different. meaning from the judgment obtained by him in the former laws, and work a change of policy of nearly a half of century’s standing? The statute should be construed in harmony with the other provisions on the same subject with which it is not wholly inconsistent.
It is a reasonable construction, and there is authority to sustain it outside of our own court, that the use of the word “judgment” in an attachment statute means a judgment upon the whole case — in personam and in rem. Gass v. Williams, 46 Ind., 253.
If there is no affidavit and bond by the plaintiff in attachment, a dissolving bond executed by the defendant and his surety is still a nullity, as was ruled in Williams v. Skipwith, 34, Ark., 329, determined in 1879. It cannot be the intention to hold that the parties to the bond shall be permitted to take advantage of technical defects in the method of procedure to be relieved of liability, and yet be cut off from the more substantial right of proving the truth of their case in a court of justice.
The circuit court of the United States sitting at Little Rock, governed as it is by our law of procedure in such cases, and professing to follow the decisions of this court on the question, has universally permitted the truth to be shown, notwithstanding the execution of the dissolving bond (see Lehman v. Berdin, 5 Dillon, 340); and this I take to be the generally accepted practice throughout the state. Many persons, doubtless like the appellee, have executed such bonds for unfortunate debtors, assuming, as they supposed, a liability contingent upon the attacher establishing the truth of the affidavit for attachment by proof whenever it should be controverted. They are entrapped by the instability of the law. It is not sufficient to answer that they should have executed the forthcoming bond. They were justified in regarding the question of the extent of their liability on the dissolving bond as stare decisis; and, moreover, the forthcoming bond is inadequate to many emergencies. Property that is released under it is still encumbered by the attachment lien, and may be retaken by the officer holding the writ after judgment. The defendant may become the custodian of his own property under this bond, but he cannot sell it except subject to the attachment lien and the plaintiff’s right to have it retaken under the writ. Few would care to become purchasers under such circumstances. "What, then, is to become of the business of the merchant or farmer who has committed no act to justify the attachment, but whose goods, stock or produce are attached, and whose credit or means of subsistence depend on -his ability to sell the attached property ? He may desire to ship his stuff to meet a rising market, or prices may be declining in a time of panic. Good faith to his sureties would preclude the execution of a forthcoming bond and a subsequent sale of the property. He must then submit to the loss, under the rule now established, and take his chance upon recovering against the plaintiff’s attachment bond for such damages as the law permits a recovery for at all; or give an undue preference to the unrighteous attachment, and submit to the costs by executing a dissolving bond. The result accomplished by the change now made is, therefore, to encourage litigation upon the one hand, and to shut out the light of truth on the other as a reward only to the reckless swearer and the perjurer.
I think the established precedents should be adhered to and the judgment affirmed.