*154Dissenting Opinion of
Lewis, C. J.In my opinion the dismissal of the attachment upon the issue raised by the plea in abatement to the affidavit, was a complete defense to the action on the bond, and the judgment of the Court be low should for that reason be reversed. The statute in certain specified cases authorizes the plaintiff to sue out an attachment against the property of his debtor for the purpose of securing any judgment which he may recover. Section 120, of the Practice Act, declares that “ the plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment-in the following cases
If the plaintiff does not show that his case is one of those in which an attachment is authorized, he is not entitled to the security which this summary proceeding gives him. Why should he be if the same fact is established by the defendant upon the issue raised by an answer to the affidavit ? If, upon the trial of that issue, the Court determines that the plaintiff was not entitled to have the property of the defendant attached, it is a direct decision that he has no right to claim the security which is given by attachment, and that he is entitled to no advantage from the issuance of it. It must be admitted that if the writ is dismissed, the defendant’s property taken under it, if in the possession of the plaintiff, or the officer, must be given up or returned, and the plaintiff loses his security. Why should he he in any better position if the defendant has given a -bond in accordance with the statute to release his property ? The bond is a mere substitute for the property itself. (Drake on Attachment, Section 321.) The statute provides that the bond may be given in lieu of the property as security for any judgment which the plaintiff may recover. If then it is determined by solemn adjudication that the plaintiff was not entitled to have an attachment issue, or to the aid of that collateral proceeding, upon what ground can he continue to hold the security which he has obtained by means of it, and maintain ^n action upon a bond which it has been judicially determined he was never entitled to, and which was obtained' by his own wrong ?
*155If the property is released upon the dismissal of the attachment, upon what reason can it be claimed that the bond, which in fact takes its place, should be held as security against the defendant ? It seems to me that when the attachment is set aside, all the proceedings growing out of it must fall with the writ. As an execution falls when the judgment is set aside, so it would seem that the entire proceedings upon a writ of attachment fall when the writ itself is quashed. The plaintiff has no more right to maintain an action on the bond than he has to retain the defendant’s property after the attachment is dismissed. If it be determined upon the trial of the issue raised by the plea in abatement that the plaintiff is not entitled to have the defendant’s property attached, any security which he may have obtained by means of the writ is founded upon his own wrong, and for that reason, if for no other, he should not be permitted to derive advantage from it. In Louisiana, under a statute, as I judge from what is said of it by Mr. Drake, in his work on Attachments, Sections 317 and 318, it was held that a dissolution of the attachment was a complete defense to the bond given to release the property ; and in the case of Caldwell v. Colgate, 7 Barbour, 258, and Homer v. Brinkerhoff, (1 Denio, 184) it.was held that if the attachment be void by reason of a defect in the affidavit or otherwise, suit could not be maintained on the bond given to release property taken under the writ. If that be the law, I am unable to see why the dissolution of a voidable attachment does not produce the same result so far as the bond is concerned. When the attachment is void there is nothing to support the bond. Being founded upon a void proceding, it is itself void. So also, with a bond given, and the writ is subsequently dismissed, the bond having been given in a legal proceeding, and that proceeding having been set aside, the bond should fall with it. The bond in such case is not given voluntarily, but in invitum, and should not be treated as if given without restraint to secure the payment of a just debt.
Again, if the attachment be illegally issued and the defendant gives a bond as prescribed by statute to release his property taken under it, he might' easily say that it was given under duress of goods, and avoid it on that ground. True, in England duress of goods is not deemed sufficient to avoid a contract, but in this coun*156try it seems to be recognized as a good defense. (1 Parsons on Contracts, 321, note.)
But it is said that the bill of exceptions does not sufficiently show that the attachment -was dismissed. In my opinion it does. One of the objections urged to the introduction of the attachment proceedings in evidence was that the writ had been dismissed, and from the language used in the bill of exceptions I could arrive at no other conclusion than that the order dismissing it was introduced in evidence at the time. It can hardly be presumed that the Court would take cognizance of the order unless it were introduced in evidence at the time the objection was taken. If the bill of exceptions shows that it was introduced in evidence, whatever may have been the immediate purpose for which it was introduced, it should receive its full effect as a defense to the plaintiff’s action. If the dismissal of the attachment is a complete defense to the action, and that fact is properly brought to the knowledge of the Court, it should have its full effect, notwithstanding it may have been brought to the notice of the Court at an improper time in the trial, or its full effect escaped the attention of counsel.
The defense is fully before us, and it seems to me should not be passed over merely because it was interposed in the shape of an ob jection to the introduction of testimony by the plaintiff. I agree with the views expressed by Justice Beatty, that aftér an appeal is perfected and the 'lower Court has adjourned for the term, the Judge below has no authority to correct the record without an order from the Appellate Court for that purpose. Hence I conclude that the bill of exceptions should stand as it was at the time the appeal was taken.
If the principal in the bond is living, and was capable of contracting, he should have been made a party defendant with the sureties. The action is upon a joint contract, and all the parties to it should be united. However, this is an objection which could only be taken advantage of on special demurrer, which was not done here. I conclude that the judgment should be reversed, and a new trial awarded.
If the Legislature passes an Act amending a former Act, but providing the amendatory Aet shall not take effect until a future day, the old Act remains in full force until the amendment goes into operation. So, too, if it is provided in the amendatory Act that such amendments shall only be operative for the enforcement of future contracts, the old law is in full force, so far as relates to the enforcement of prior contracts. Per Beatty, J. Whether the debt on which the attachment, in Bowers v. Atkinson, was one on which an attachment might legally issue on not, is wholly immaterial. The bond recites that the goods to be released were attached; the obligors cannot contradiet that recital. The clause in the Stamp Acts of the State and United States which exempts from stanp duty those bonds which are “ required in a legal proceeding,” is not confined to those bonds without which no action could be maintained or prosecuted, but is more general, and means all bonds required to give either party to a legal proceeding any advantage or privilege, to which he would be legally entitled in the course of that proceeding upon the execution of a proper bond. In a trial before the Court without a jury, where one party offers a paper in evidence, and the other side objects, and the objecting party bands the paper to the Judge for inspection to see whether it shall not be excluded, and the paper is excluded, the objecting party cannot afterwards claim that the paper was in evidence because of the fact that it was read by the Judge for this special purpose. So, if one side offers in evidence a certain number of papers selected from a bundle, and the other side objects because there are other papers belonging to the same bundle, which he claims would show those papers offered should not be admitted in evidence, and he calls the attention of the Court to those other papers, and induces the Judge to read them before deciding the objection, this does not put those latter papers in evidence for the general purposes of the trial.