the attachment, and why did it declare that the consequence would be a discharge of the attachment itself, using the very language which, in the same statute, was employed to express the legal extinction of the writ? One of the principal reasons urged to support the doctrine that the affidavit may be traversed although the defendant has rebonded is that the other rule would result in great injustice to the defendant, who might suffer damages through delay, for which the law would afford him no redress, or which the penalty of the plaintiff's undertaking would not equal; that the law intended that he should have the speedy mode of securing possession of his property by bonding to prevent such irreparable injury; and that it would be unjust to hold that he could secure this right only at the expense of the other right to assail the truth of the attachment affidavit.
The whole force of this argument depends upon a false assumption. So far from securing his property more speedily by rebonding, the fact is that a motion to dissolve on the ground of the falsity of the affidavit may result in the defendant’s securing a more speedy return of his property than he would by rebonding. The plaintiff has three days after the execution of such undertaking in which to decide whether he will except to the sufficiency of the sureties. § 5010 Comp. Laws. During this time the sheriff has the right to and usually will hold the property. The plaintiff may then except to the sureties, and the defendant can thereafter have them justify, upon uot less than five days’ notice. § 5010 Comp. Laws. It is, therefore, always in the power of the plaintiff to prevent the defendant from securing a return of the attached property in less than eight days from the execution of the undertaking. But the defendant may, in a proper case, in a case where he will suffer irreparable damage from the delay, in any case of great hardship, apply to the court to shorten the time in which to move to vacate the writ, and the court will, in the exercise of its discretion, shorten, by an order to show cause, the time in which to make such motion, forcing the plaintiff to sustain his attachment in much less than eight days; and, if it be said that it may require time for the defendant to prepare his papers for such a motion, it is no less true that it may and often will take time for him to secure sureties
