¶1dissenting. A proceeding by attachment, under our laws, is a proceeding in rem, and constitutes a main or principal action, because it may be intituted for the recovery of a debt, and prosecuted to final judgment and execution, without personal citation to the debtor. And when carried on as a proceeding in rem, a decree dissolving the" attachment operates a dismissal of the action, unless the execution of the decree is arrested by a suspensive appeal within the delay prescribed by law.
¶2When a proceeding by attachment is cumulated with a personal action, that is, accompanied with personal citation to the defendant, it does not lose its character of a proceeding in rem, because, although the dissolution of the attachment does not involve a dismissal of the personal action, yet it does operate a dismissal of the action against the thing itself, that is, the property attached, unless the execution of the decree is arrested by a suspensive appeal within the legal delay. Hence it is, that a decree dissolving a writ of attachment, although cumulated with a personal demand, is held to be in the nature of a final judgment, and to work an irreparable injury, unless suspended by appeal. Why does such a decree work an irreparable injury ? It is because, the decree becomes executory, after the lapse of ten days from its rendition, the seizure under the writ of attachment is released by operation of law, the property ceases to be in the custody of the Sheriff under the writ, or subject to any further order of the court in the suit. In other words, it is because the proceeding by attachment is decided against the plaintiff, and the decree is executed by a return of the property to the defendant, which in his hands is subject to alienation, or other disposition, as though the writ of attachment had never issued.
¶3*711Where the property attached has been bonded, the bond represents and stands in the place of the property; and where the attachment is dissolved, the decree has the same effect upon the bond, that it has upon the property itself; that is to say, the seizure is released by operation of law, the bond ceases to be in the custody of the Sheriff, under and by virtue of the writ of attachment, or subject to any further order of the court in the suit. In other words, the bond is canceled by operation of law under the decree dissolving the writ of attachment, and no judgment is necessary, pronouncing its cancellation. As a suspensive appeal was not taken from the decree dissolving the writ of attachment, in the case in which the attachment bond in question was given, and as the decree, consequently, had its legal effect upon the bond, I am of the opinion that the plaintiff has no right of action on it, for the reasons above stated.
¶4It is true that all interlocutory orders, from which no appeal lies, are brought up to the appellate court, with the appeal from the final judgment, and may be revised and corrected, on such appeal, whether the same be suspensive or devolutive. But a decree dissolving a writ of attachment is only in name an interlocutory order; it is, in substance and effect, a final judgment, and such I understand the doctrine to be, announced in the case of Love, Savage & Co. v. McComas & Cloon, 14 An. 201.
¶5Rights acquired in the execution of a judgment from which no suspensive appeal has been taken, are not divested by a subsequent reversal of the judgment. The right, which the surety acquired by the execution of the decree dissolving the writ of attachment, was his release from the bond, and the subsequent reversal of that decree, did not divest the right thus acquired.
¶6The decree of the District Judge in the case of Love, Savage & Co. v. McComas & Cloon, so far as it declared the attachment bond canceled and annulled, was, in my opinion, mere surplusage, because the bond was canceled, by operation of law, under the decree dissolving the attachment.
¶7For these reasons, there should be, in my opinion, a judgment in favor of the defendant, the surety on the attachment bond.