dissenting:
I differ with the majority of the court in their conclusions in this case, and think the question is of such importance that I ought to give some expression to my views.
1. I agree with the learned trial judge, and think the judgment should be affirmed. The title of section 6394 shows that it is intended to offer distinct alternative methods open to a defendant whose property has been attached. The title is: “How any property seized under attachment restored; how the whole released; what bond to be given.” If the defendant simply desires the property siezed under the attachment to be restored to him, or to some other person in whose possession it has been, he should give a bond reciting the fact that he so desires. In that event the condition of such’ a bond is to have the property “forthcoming at such time and place as the eourt may require.” On the other hand, if he desires to have the property absolutely released from the lien of the attachment, the condition of the bond must be, “with condition to perform the judgment of the court.” That these distinct alternatives are presented is expressed in the section by the provision for the filing of the bond “in either case.” The bond here involved does not fully meet either of these alternatives, but refers to both; that is, it recites that “the Ryland and Brooks Lumber Company is *484desirous of releasing the said property attached as aforesaid,” but the condition of the bond is not appropriate for the release of such property, for it is that it “shall be forthcoming at such time and place as the court may require.” The only condition upon which the defendant could have secured the release of the property pursuant to the statute was by giving a bond with condition to perform the judgment of the court. The bond here, however, is with condition to have the property forthcoming, and so is not a release of the attachment under the statute, because it is perfectly clear from the statute that only in case the defendant gives a bond to perform the judgment of the court should the property itself be released.
In this- case, the bond recites that such release was desired, and it was treated by both parties as a release of the property, for in addition to the recital of its purpose it is shown that it was immediately released by the officer to the defendant in the attachment, The Hyland and Brooks Lumber Company, who sold it and took the proceeds. I think, therefore, that the bond should be construed to be a common-law bond, by which the defendant, not according to but against the statute, secured from the officer the absolute release of the property, and hence that the Maryland Casualty Company is liable in this proceeding for the breach of its condition.
2. I realize that by some this may be conceived to be a literal construction of the statute which is too narrow, but even if the bond be construed to accord with the statute, this does not change my view as to the proper conclusions in this ease.
Adverting then to section 6385, which is relied on to support the reversal of the case, we observe that it immediately follows section 6384 providing for the *485bond which the plaintiff is required to give if the officer is required to take actual possession of the property. Section 6385 applies primarily for the protection of the defendant when the plaintiff has not previously given any bond under section 6384. It in substance provides that if the principal defendant file an affidavit that he has a substantial defense on the merits, then upon proper notice to the plaintiff the attachment shall stand dismissed, ipso facto, unless within ten days thereafter the plaintiff, or some one for him, shall enter into a bond in a penalty of at least double the amount of the claim sworn to, or sued for, with condition to prosecute his attachment and pay all costs and damages which may be adjudged against him. The note of the revisors to this section reads: “This section is new, and is intended to cover the case where no bond was given under the preceding section, but the property of the defendant was levied on, though not taken possession of, and he has a substantial defense to the merits. In such case it was thought that the plaintiff ought not to be allowed to tie up the property of the defendant without giving bond to cover the resulting damages.” Observe the expressed purpose of the section, and that it was intended to prevent a hardship upon the defendant. It was not designed then to impose an unnecessary burden on the plaintiff. The thought of the revisors in preparing the section was fixed upon cases in which no bond had been given by the plaintiff under the preceding section. I think that if at that time their minds had been directed to section 6394, referring to bonds to be given by defendants, it would have been equally evident to them that the section should not be made to apply in case the defendant himself had already relieved himself of all the hardship created by the attachment, *486either by giving a forthcoming bond, or a release bond. Certainly when, as in this case, the defendant has already given a bond and resumed possession and ownership of his property under section 6394, he is suffering no hardship. All that he then has to do is to interpose his defense.
The construction which the court has in this case put upon the new section (6385), however, may impose a great hardship upon the plaintiff in an attachment. He may be unable to give a bond and this may be the reason he has not given a bond under section 6384. The new section requires him to give a bond of double the amount of his claim, and this, in many instances, may be for that particular plaintiff an impossibility, and yet, as construed by the court, this hardship is inevitably imposed in every ease.
My judgment is that the three sections relating to attachment bonds should be construed together so as to meet the varying conditions. Both plaintiff- and defendant have options, and logical consequences ensue from the exercise thereof. If the plaintiff wishes the officer to take possession of the property and imposes that hardship upon the defendant, he must give a bond under section 6384 to respond in costs and damages. If the defendant then wishes to have the property either restored to its former custody, or finally released, he gives a bond with appropriate condition under section 6394, all ultimate rights are thereby safeguarded, and the case proceeds. If, however, for any reason, the plaintiff has not given bond under section 6384 and the defendant has not given bond under section 6394, then the defendant may take advantage of section 6385. Not unless this is true, -however, because if the plaintiff has already indemnified the -defendant against damages and costs, there is no need *487for another bond for the same purpose under 6385. If on the other hand the defendant has resumed possession of his property under section 6394 by having given. the bond thereby required, he is suffering no hardship. It may be wise and in the interest of justice in cases where a plaintiff has given no bond under section 6384 and the defendant has given no bond under section 6394, to require a bond of the plaintiff at the instance of a defendant who has a substantial defense, under penalty'of having his attachment dismissed. But why require such a bond of the plaintiff when the defendant is suffering no hardship because he has already discharged or released his property from the attachment by giving the bond under section 6394? There appears to be no need for such a requirement. As it seems to me, it imposes an unnecessary hardship upon the plaintiff without any corresponding benefit to the defendant, and construed as the majority have construed it in this case it operates harshly upon a plaintiff who is unable to give such a bond for double the amount of his claim. Such a construction then should be avoided, unless the statute is so clear as to be unavoidable.
As I understand from this record; such a construction imposes a harsh consequence upon this plaintiff. He has recovered a judgment on the merits, after a fair trial, for the loss of his hand, against an insolvent defendant. The attachment was properly levied and could not have been dissolved upon the merits. The only purpose of the bond on which the plaintiff in error is surety was to release the property to the insolvent defendant and make the surety responsible for the failure to produce it to satisfy the final judgment of the court in the original action. The reversal of this judgment relieves the surety of that obligation.
*488The cases relied on, to the effect that the dissolution of the attachment releases the bond, have not arisen under this new statute, section 6385, and are eases in which it had been determined that the attachment had been improperly sued out and levied. As I understand the facts of this ease, this attachment was properly levied. The property levied on was released from the attachment only because of the bond which was given by the defendant, and it had been so released two years before the defendant filed his affidavit of substantial defense under section 6385. At the time that affidavit was filed there was no remaining issue or question for the court, except to determine the controversy on the merits. The defendant had already exercised his option and the affidavit came too late. If given the same effect as though filed before the bond here sued on had been executed, it contradicts and ignores the original bond, is inconsistent therewith and violates the contract therein contained. This contract is clear and contains no limitation whatever upon the liability thereby assumed. There is no Virginia case which denies this view. These expressions and cases are persuasive:
In Guaranty Security Corporation v. Oppenheimer (1923), 243 Mass. 324, 137 N. E. 644, it is said: “The attachment was dissolved by giving the bond. The lien acquired by the attachment was gone when the bond was delivered. The bond was not given for the property nor as security for its value. It was a new obligation.”
In Tapley v. Goodsell, 122 Mass. 176, this is said: “A surety on- a bond to dissolve an attachment does not stand upon the footing of a stranger to the action. The very purpose as well as the tenor of his obligation is to secure the payment of any judgment that may be re*489covered against Ms principal. The bond is not affected by contingencies -which might have discharged the attachment if no bond had been given.”
In construing a statute, it is held in Easton v. Ormsby (1893), 18 R. I. 309, 27 Atl. 216, that a bond conditioned either to pay such judgment as may be rendered or to redeliver the property, worked an absolute dissolution of the attachment lien, having been given and accepted as a new security in lieu of such lien, so that thereafter there was no room for the operation of another statute providing that the assignment by a debtor, after an attachment of Ms goods, should operate to dissolve such attachment, and that consequently the liability of the sureties on such bond remained unchanged by their principal’s assignment. If this conclusion is correct, it is a precedent which, if followed, is decisive of this controversy.
In that State, under the statute there being construed, a general assignment of the debtor operated to dissolve attachments which had been levied within the preceding sixty days, and this appears in the opinion of the court: “The first question wMch logically presents itself for our consideration is tMs, viz: What was the effect upon said first attachment of the giving of said bond? Or, to be more specific, did the giving of said bond dissolve said attachment? If it did, then there was notMng for said assignment to act upon. But if it did not, then there was, and the making and recording thereof dissolved said attachment. Pub. Stat. R. I., chapter 207, section 16, provides that ‘the defendant in.any writ upon wMch goods and chattels shall have been attached may, at any time within forty-eight-hours, exclusive of Sunday, after such attachment, deliver to such officer a bond in the penal sum of the amount of damages laid in the writ, signed *490by the defendant, or some one in his behalf, with sureties to the satisfaction of such officer, with a condition therein that the same shall be null and void if the final judgment in the action in which such writ was served shall, be forthwith paid and satisfied after the rendition thereof.’ Section 20 of the same chapter provides that ‘every officer having goods and chattels attached by him in his custody shall surrender the same at any time after such attachment and before final judgment to the person whose interest therein has been attached, or from whose possession they have been taken, upon being tendered a bond by the defendant, or some one in his behalf, with sufficient sureties to the satisfaction- of such officer in double the value of the goods and chattels so attached, or in -the penal sum of the amount of damages laid in said writ, with condition that such bond shall be null and void if at any time after final judgment in the action in. which such attachment shall have been rendered, such goods and-chattels shall, upon request therefor, be in as good order and condition as when surrendered, returned to the officer taking such bond, or to any officer who shall be charged with the service of an execution levied upon the judgment rendered in such action, unless such judgment shall have been paid, or shall be immediately paid, together with the costs upon such execution, upon the making of such request, or the return of such goods and chattels.’
“The principal difficulty which arises in regard to the solution of the question we have suggested, is that said bond contains two conditions, viz: First, a condition to pay the judgment which shall be recovered in the action, as provided in said section 16, and second, to return to the officer, upon request, the goods attached in as good order and condition as when sur*491rendered, in ease final judgment' is rendered in favor of the plaintiff, as provided in section 20. Either one of these conditions would, of course, have been sufficient. But the obligors, instead of making any election,. and giving either a bail bond, as they might have done by inserting the first condition only, or a delivery or forthcoming bond, by inserting the second condition only, have given one containing both of said conditions. That is, strictly speaking, the obligors have bound themselves both to pay the judgment and also to return the goods. But inasmuch as the conditions in a bond are to be taken most strongly in favor of the obligors, Pearce v. Maguire, 17 R. I. 61 [20 Atl. 98], we think these conditions should be construed as in the alternative, and hence that the bond may be satisfied by the performance of either. In order to better determine the effect of said bond upon the attachment, however, it may be useful first to ascertain whether it is a statutory or a common-law bond. We think it must be held to be a common-law bond. For, although it contains internal evidence of the intention of the obligors to make it a statutory bond, yet, as it does not conform to either of the provisions aforesaid, but embraces them both, thereby making a condition not contemplated by either, we do not think it can be held to be a statutory bond. Official bonds must conform to the statute by which they are authorized, and if they do not they are invalid altogether, or valid only as common-law bonds. Murfree on Official Bonds, section 41; Adler & Roedelheim v. Green, 18 W. Va. 201. This bond is clearly valid, however, as a common-law bond. It violates no statute and was made upon a valid and lawful consideration. Central Mills v. Stewart, 133 Mass. 461; Palmer v. Vance, 13 Cal. 553-556; Smith v. Fargo, 57 Cal. 157; Bunneman v. *492Wagner, 16 Oregon 433 [18 Pac. 841, 8 Am. St. Rep. 306].
“Having determined the character and validity of said bond, then, we are next brought to the consideration of the effect thereof. And first, what was the evident purpose of the obligors in giving said bond? Clearly it was to release the goods from attachment, and thereby enable the owner thereof to go on with his business. That the obligors so interpreted and understood it is evident from the subsequent conduct of said defendant, Atwater, in proceeding to sell and dispose of said goods in the regular course of his business as aforesaid; and that the sheriff so understood it is also evident from his conduct in immediately surrendering said goods to the said Atwater.
“As was said by Durfee, C. J., in Pearce v. Maguire, supra: ‘There must be many cases in which the purpose of procuring the surrender of the goods, understood on both sides, is that they may be used up or sold so that it will be impossible to return them.’
“We are forced to the conclusion, therefore, that the giving of said bond, coupled with the conduct of the parties in connection therewith, worked an absolute dissolution of said attachment and that such was the understanding and intention of the parties to said bond. In other words, said bond was given and accepted as a new security and was intended to and did take the place of the attachment lien. The officer was not compelled to surrender the goods on being tendered such a bond, it not being in compliance with the statute as aforesaid; but by surrendering them, and accepting said bond in lieu thereof as he did, he put it out of his power in any circumstances to compel their return to him, and thereby discharged his attachment thereon. Such surrender of the goods ipso facto *493works a dissolution of the attachment and from that moment reinvests the defendant with the absolute control thereof. See Pomroy v. Kingsley, 1 Tyler (Vt.) 294.
“The obligors have not performed either of the. conditions contained in said bond, but claim to be discharged therefrom by reason of the fact that the debtor, within sixty days after said attachment, made an assignment as aforesaid which dissolved said attachment, and that thereupon all liability of the said sheriff to the plaintiff in said original action, growing out of said attachment, immediately ceased.
“Whatever may have been the effect of said assignment upon the attachment in question, and incidentally also upon the rights of the obligors in said bond, if it had been given under the provisions of said section 20 of chapter 207, it is clear that it can have no effect in this case, as there being no attachment in existence for it to operate upon, the making thereof had no effect upon the rights of the plaintiff under said bond.”
With due respect to my brethren, then, my opinion is that the bond did not comply with the statute (6394); that it was a common-law bond, an inviolable contract, and should be enforced as such against the surety. In addition thereto, I am of opinion that Code, section 6385, requiring a bond of the plaintiff within ten days after a defendant makes affidavit of a substantial defense, does not apply in a ease where either the plaintiff has already given a bond requiring the officer to take possession of the property, under section 6384, or where the defendant, under section 6394, has previously given a bond with condition either to have the property forthcoming, or to perform the judgment of the court. This construction, as I think, accords with the entire statute, and makes all three sections effective, *494whereas, in my opinion, the construction of the majority fails to give proper effect to section 6394 and to the contract of the surety, from which contract their conclusion relieves the surety.