that the amount of the judgment recovered by plaintiff shall be paid. The statute does not provide in express terms what the condition of the substitute bond shall be. It is expressly provided that the giving of the discharge bond shall “discharge the attachment.” No such provision is found in connection with the substitute bond. If the plaintiff omit to except to the sureties in the discharge bond, he cannot after judgment look to the sheriff, as the law has given him the bond in lieu of the attachment and levy thereunder. Would it be claimed that the sheriff would be likewise exonerated in all cases on taking the substitute bond to which plaintiff has no power to object? These two bonds are essentially different. The one destroys the attachment, the other at most only the levy.
It is apparent from these considerations that the argument of hardship has no force in this jurisdiction, on the view of the question most favorable to the appellant. The defendant may always release his property, or prevent its being seized, without waiving his right to assail the truth of the attachment affidavit, or even without subjecting his person to the jurisdiction of the court, where he has not been personally served with process. The substitute bond merely represents the property seized or about to be seized, and in no manner affects the writ itself. Counsel for appellant seems to concede that, under such a state of the law, the court may well hold that the execution of the discharge bond destroys the right to assail the attachment. It is on this ground that he insists that Ferguson v. Glidewell, (Ark.) 2 S. W. Rep. 713, does not overrule the priorcases, but is founded on a change in the law, giving the defendant the right to execute a forthcoming bond to obtain a return of his property, no such bond being authorized when the former decisions were made. In the case of Bates v. Killian, 17 S. C. 553, stress was laid on the clause, to be found also in § 5011, Comp. Laws, providing that in all cases the defendant might move to discharge the attachment as in case of other provisional remedies. From this it is inferred that he was to enjoy this right, not only in all cases, but also at all times and under all circumstances. It is strictly true that the defendant had the right in this case to move to discharge the attachment, but the time to exercise this right has
