The rules of construction heretofore used by this court in passing upon the effects of a bond by the defendant to dissolve an attachment upon his right to attack the attachment proceedings are not, therefore, applicable to a dissolution bond executed under the Code, the reason having ceased to exist." This case is directly in point, the court holding that the defendant and sureties were precluded from asserting that the attachment was improvidently issued; even though after the execution of the bond the writ had been vacated on motion. The discharge can have no effect at all if it does not affect the bond. The court held that there was in fact no attachment to discharge, saying: "Section 337 as we have seen, provides that the defendant may discharge the attachment by giving bond that he will perform the judgment of the court. How can the attachment be sustained or discharged after the defendant has discharged it by giving the bond?" The decision in Lehman v. Berdin, 5 Dill. 340, was simply the adoption of the prior ruling by the state by the federal court, as was indeed its duty. These rulings were sound, as was the decision in Love v. Voorheis, 13 La. Ann. 549, where the statute provided that the giving of the bond should operate not to discharge the attachment, as in this state, but merely release the property from the levy. Right here lies the fallacy of appellant's reasoning. He repeatedly asserted that the statute gives him the right to move at any time before judgment. But this provision necessarily presupposes an existing attachment to be assailed and overthrown. The right to strike down the writ by litigation certainly cannot be exercised after the suitor has voluntarily supplanted the writ as well as the levy by giving the statutory discharge bond. The right to move to discharge the attachment any time before judgment will not warrant the court in reviving the writ which the defendant by rebonding has already discharged. The authorities fully sustain our position. The cases here cited are not all directly in point, but they are all in harmony with our views, and some are express authority for our position: Dierolf v. Winterfield, 24 Wis. 143; Wolf v. Cook, 40 Fed. Rep. 438; Austin v. Burgett, 10 Iowa, 302-304; Allerton v. Eldridge, 10 N. W. Rep. 252; Hill v. Harding, 93 Ill. 80; Bunneman v. Wagner, 16 Or. 433, 18 Pac. Rep. 842; Myers v. Smith, 29 Ohio St. 123; Paddock v. Matthews, 3 Mich. 23; Endress v. Ent, 18 Kan. 236; Bank v. Mixter, 124, U. S. 728, 8 Sup. Ct. Rep. 718; McCombs v. Allen, 82 N. Y. 117; Carpenter v. Turrell, 100 Mass. 450; Barry v. Foyles, 1 Pet. 314; Inman v. Strattan, 4 Bush, 445; Hazelrigg v. Donaldson, 2 Metc. (Ky.) 445; McAllister v. Eichengreen, 34 Md. 54. The Arkansas cases we have seen are not in point, and are opposed to the latest decisions of that court under new statutes very similar to those of our state. In Louisiana, the statute, as we have seen, provided for only a releasing of the property, and not the discharge of the attachment on the giving of a bond, and the cases from that state, are, therefore, foreign to the question involved. Two decisions from New York are cited, (Garbutt v. Hanff, 15 Abb. Pr. 189; Claflin v. Baere, 57 How. Pr. 78,) which appear to sustain appellant's view, but the court of appeals in that state in quite a recent case has ruled that the discharge bond destroyed the attachment, (McCombs v. Allen, 82 N. Y. 114.) It is true that the precise question presented by this appeal was not before that court, but both the decision and the language of the court sustain the holding of the court below in the case at bar. Defendant, having discharged an attachment by rebonding, went into bankruptcy within four months after the time when the attachment was issued. The bankruptcy act under such circumstances destroyed the attachment. In an action on the bond, it was contended that the bond was a mere substitute for the writ, and that, the bankruptcy proceedings having annihilated the attachment, the bond also was swept away. But the court held that there was no attachment existing after defendant had rebonded upon which the bankruptcy act could exert its force, saying: "There was no attachment lien nor any attachment in force upon which such proceedings could operate, and this fact is conclusive against the defendants." The same decision was made in Carpenter v. Turrell, 100 Mass. 450, and in Hill v. Harding, 93 Ill. 80. The case in 4 Hill, 598, (in re Faulkner,) was a case of void attachment, because the affidavit on which it was founded was insufficient on its face. Bruce v. Conyers, 54 Ga. 679, belongs to the same class, as is apparent from the syllabus: "Attachment may be dismissed for defective affidavit after replevy bond has been given. The security in the replevy bond is not bound if the property was not bound. A void attachment will neither uphold the levy nor a bond given to support the levy." There is a manifest difference between a void attachment and one which may be set aside because improvidently issued. A void attachment will not support a discharge bond, because there is nothing for the bond to rest upon. A valid attachment which may be vacated because the affidavit is false will support such a bond. We will discuss this question and the appellant's contention that the attachment was void in a subsequent portion of this opinion. The Ohio case (Egan v. Lumsden, 2 Disn. 168) cited by appellant does not express the rule in that state. Myers v. Smith, 29 Ohio St. 123. This later and higher decision supports the respondent's view. There is, in fact, no authority to support the appellant's position under the same statute, the strongest case (Bates v. Killian, 17 S. C. 553) being a decision of a jurisdiction having no forthcoming bond, and providing no other means by which defendant could secure possession of his property except by giving the bond, the effect of which, it was claimed, was to bar defendant's right to assail the attachment affidavit. It is on the ground of the absence of the right to give such a bond that the appellant is strenuously insisting upon the hardship of the construction for which respondent contends; and the supreme court of Arkansas in Ferguson v. Glidewell, 2 S. W. Rep. 711, lays considerable stress on the fact that since the last decision in that state the right to give such a bond to secure his property has been conferred upon the defendant by statute. As we regard the statute in our own state, the bond it provides for is still more favorable to the defendant, as it enables him not merely to become the custodian of the property subject to the lien of the attachment, but to release his property from such lien absolutely. This was the construction given the same statute in California. Curiac v. Packard, 29 Cal. 194. This construction does away with the criticism of Chief Justice Cockrill, in Ferguson v. Glidewell, 2 S. W. Rep. 711-718, that the right to give a forthcoming bond was not sufficient to pro tect the defendant, as the property would remain subject to the attachment in his hands, and he be thereby precluded from selling it in the usual course of business. Under our statute, the substitute bond takes the place of the lien of attachment, and defendant can, by giving it, secure or retain, without losing the right to attack the writ because improvidently issued, the same unfettered dominion over his property which he could exercise before the seizure was made or threatened. It was also argued that a bond given to discharge a void attachment is itself void, and that the attachment in this case being founded, as is admitted by the motion to strike out the affidavits, on a false affidavit, is void. This question will more properly arise in an action on the bond, but as the motion to discharge also embodies the further motion to annul the bond, we will consider the point. The general proposition that a void attachment will not sustain a bond given to discharge it or release the property is sustained by authority, and is sound on principle. Williams v. Skipwith, 34 Ark. 529; Bruce v. Conyers, 54 Ga. 679; Hamilton v. Merrill, 37 Ohio St. 685; Vose v. Cockroft, 44 N. Y. 415; Shevlin v. Whelen, 41 Wis. 93; Bank v. Mixter, 124 U. S. 728, 8 Sup. Ct. Rep. 718. But the attachment in this case was not void. There was jurisdiction to issue it. The power to grant the warrant rests not upon the fact of non- residence, but upon the fact that the affidavit states that the defendant is a non-resident. The statute provides that "the warrant may issue on affidavit stating," etc. § 4995 Comp. Laws. Said the court in Haggart v. Morgan, 5 N. Y. 422: "The fact itself is not jurisdictional, although competent proof of that fact is." And in Lovier v. Gilpin, 6 Dana, 321, the court observed: "The authority of the justice does not depend in any degree upon the truth of the statement made by the affiant, and on the ground of which the attachment issues, but upon the sufficiency of the statement itself when compared with the law. To prove the falsity of a statement which is sufficient in itself does not, therefore, disprove the authority or jurisdiction of the justice, nor prove nor make the process void for want of authority." See, also, Drake, Attchm. §§ 320, 397, note. The only case appearing to hold the contrary is Egan v. Lumsden, 2 Disn. 168. In the other cases in which the courts have held the giving of the undertaking no destruction of the right to traverse the attachment affidavit, it has never been insisted nor intimated that the writ was void because the affidavit was false. The condition of the discharge bond as fixed by the statute indicates the legislative intent that the bond shall not be affected by the dissolution of the attachment, or by any other contingency than the failure of plaintiff to obtain judgment in the action. That condition is to pay the amount of the judgment that may be recovered against the defendant. The promise is absolute, because upon it the writ itself is discharged. The order of the district court is affirmed. All concur. 1 309 1 381 1 386 47* 390 48* 233 WILLIAM BUDGE, Appellant, v. THE CITY OF GRAND FORKS, Re spondent. 1. Taxation - Action by Purchaser of Void Certificate to Recover Against City. Plaintiff's assignor purchased certain real estate at tax-sale thereof for non-payment of an assessment for street improvement made by the 'authorities of the defendant city. The city had jurisdiction to make the assessment and sell the assessed property for non-payment, but, by reason of irregularities in the proceedings leading up to the sale, the tax-sale certificates issued by the city treasurer to the purchaser were subsequently decreed to be invalid. Held, that the tax-sale purchaser bought under the rule of caveat emptor, and, in the absence of a statute authorizing it, had no right of action against the city for the purchase money paid for such invalid tax-sale certificates, and the rule is none the less applicable because the sale was made for the exclusive benefit of the city defendant. 2. Same; Same; Effect of Recitals in Certificate. Held, further, that the recital in such certificate that the purchaser would be entitled to a deed at a specified time was of no force as a covenant for a deed, and added nothing to the force of the statutory provision to same effect. 3. Same-Reassessment. Held, also, that a subsequent statute, authorizing municipalities to reassess for street improvements where a former assessment was for any cause invalid, as to all property upon which such former assess 48* 235 1 |