Same Case- — On a Re-hearing.
Duffel, J.A re-hearing was granted in this case for the purpose of reconsidering the reasons of our first decree; and we are of opinion, after having well considered the subject, that our judgment should be based on different grounds.
The doctrine is well established, that “ persons, out of the State, can only be made amenable to our tribunals by having their property attached. A writ of attachment duly executed stands in the place of a citation.” Schlatter et al. v. Broaddus et al., 4 N. S. 430 ; Favrot v. Delle Piane, 4 An. 584. Hence a writ of attachment is not, in the case of an absentee, a conservatory act, a remedy, an incident to a main action; but is, on the contrary, the very foundation of the action, and stands in the place of a citation in ordinary cases. Hence it follows, as a natural consequence, that an order setting aside an attachment terminates the suit, and is a finality, unless appealed from. The operation of such a judgment, whether styled interlocutory or final, can' only be stayed by an appeal, as its immediate effect is to cause an irreparable injury to one of the parties — 0. P. 566 ; and the fact, that the defendant brought himself within reach of a personal *712judgment by bis appearance, does not destroy the effect of the interlocutory judgment, or suspend its operation, unless appealed from within the legal delay.
The rule taken on the plaintiff, to show cause ‘‘ why the attachment herein issued should not be set aside, and the bond given for the release of the property, canceled and annulled,” having been made absolute, the attachment was thereby, and by mere operation of law, set aside, and the bond canceled, without the necessity of any addition. Love, Savage & Co. v. McComas & Cloon, 14 An. 201.
It is however contended, that the appeal taken from the above interlocutory order was not suspensive, but devolutive, by reason of the appeal bond being only for $500. The judgment, it must be observed, was signed on the 27th of November, 1857 ; the appeal was taken on the same day, and the appeal bond was filed on the 30th day of the same month and year.
The appeal, therefore, having been taken, and the bond filed within the delay required to suspend the execution of the judgment, must have that effect, unless the bond be insufficient. O. P. 575.
The judgment was not a moneyed one ; the defendant had the custody and control of all the property attached; he had, besides, the obligation furnished by the plaintiff', on obtaining the writ of attachment, to cover all damages — C. P. 245 ; wherefore, under the authority of the case of C. Blanchin v. Steamer Fashion, 10 An. 345, and the cases therein cited, we conclude that a bond for costs only could be required, and that the bond givoD was ample for such an object.
It is, therefore, ordered, adjudged and decreed, that the judgment heretofore rendered by this court remain undisturbed.
Merrick, O. J. For the reasons given in my original opinion, I concur in the decree.
Land, J., absent.