
    Church & Al. v. Henry.
    The statute law of Mississippi authorizes defendants in attachments for debts not due, to give bond with security for the payment of the debt at maturity; which is binding on the principal and surety, without any judgment having been first obtained by the creditor against his debtor for the amount of his demand.
    Appeal from the commercial court of New Orleans.
    This is an action against the surety in an attachment bond taken under the laws and in the State of Mississippi, authorizing attachments to issue for debts not due; and also allowing the defendant in such cases to give a bond with security to pay the debt when it becomes due, and thereby release his property. See Howard <& Hutchinson’s Digest of the Statutes of Mississippi, ch. 43, sect. 25, pp. 553, 554.
    The plaintiffs show that on the 12th April, 1839, they sued out an attachment in Hinds county, in the State of Mississippi, on two notes of Massey Wasson, not then due, but to become due in June following, and that the latter immediately gave a bond with security, conditioned, that “if Massey & Was-son did pay the two notes at maturity, that the bond should be null and void; otherwise to remain in full force.”
    The attachment suit was dismissed by the circuit court of Hinds county, on the 22d May following. It seems, however, the defendants filed a plea in abatement for a misnomer; but the attorney testifies th'at the dismissal was his own act, because the bond operated as a termination of the suit. The suit was dismissed at plaintiff’s costs.
    The notes on becoming due in June following this attachment and bond, were protested for non-payment. The defendant, Henry, being one of the sureties in said attachment bond, and found in the city of New Orleans, was arrested and held to bail in the present action instituted on said bond.
    The defendant admitted his signature to the bond, but denied his liability under the circumstances of the case. That the bond was never filed in [71] court in Mississippi, as it was by law required to have been done; but on the contrary was sent to this city. He further avei's that on the dismissal of the attachment suit in Mississippi, the bond became null and void.
    Upon these pleadings and issues, and on the evidence there was judgment for the defendant, and the plaintiffs appealed.
    
      L. Janin for the plaintiffs.
    
      1. The condition of the bond was, as above stated, that the securities should pay the two notes, if they were not paid by Massey & Wasson at maturity. It was absolutely for the payment of the money, and there was no other condition in it whatever.
    2. It is proved by two practising lawyers in Mississippi, and bv th" -- stabie who executed the bond, that under the law^ £ Mississippi, the d¡f¡M-ant in an attachment suit, when tb; ¿eBt is not yet due> hag the optionj either ““ <^ve a common VCjhevin bond for the forthcoming of the property, or to give a bond for ¿he payment of the debt at maturity, and that in the latter case the bond is not usually (”ed m court but delivered to the plaintiff, who can brine spy* bn it in any part of the world. Such a bond for the absolute payment of the debt puts an end to the suit, but may be the foundation of a new suit. On the 22d of May, 1839, Massey & Wasson put in a plea in abatement, founded on a misnomer, but then, it has been seen, the suit was already at an end. This entry on the minutes of the court of Hinds county, is found: “ This cause was called up and the suit dismissed at plaintiffs’ costs. The evidence of Trimble, the attorney of plaintiffs in that suit, shows that this dismissal was his own act. As soon as the case was called up, he discontinued it, because the bond he had obtained operated as the termination of the suit. He says, that after the bond had been given no further proceedings could be had in the suit. The entry on the minutes mentions neither the appearance of parties or arguments of counsel, or any plea on file, which assuredly would have been done if the suit had been dismissed at [72] the instance of the defendant.
    3. In relation to the validity of the bond and its effect, the 25th section of the 43d chapter of the statutes of Mississippi, describes the cases and the-manner in which attachments may issue for debts not due, and says (last proviso), “ that all such attachments shall be repleviable in the same manner as other attachments are by law.” The 15th section, p. 550, says “ that all attachments shall be repleviable .... on the appearance of the defendant, and putting in good special bail, or by giving bond with security to the sheriff,” &e. These are the only statutory provisions of the law of Mississippi on the subject. Nothing more definite is said concerning the condition •of the bond. Does this prevent parties from giving such bonds as the s>ne sued on in the present case, when the debt is not due ? The plaintiffs harae shown that the constant practice is to leave to defendant the choice between the different bonds, that where it is given in the form of the bond sued on', it operates as a collateral security, as a compromise it puts an end to the snSt, and is binding according to its tenor. The bond signed by the parties sh their law, in this-ease It has the sanction of reason, justice and constant practice, it is opposed by no prohibitory law, and the defendants have left tl«‘ testimony of the plaintiffs uncontradicted.
    4. As t® the law, it has been long settled that the obligor on a bond cannot contest his liability .on the ground that it does not pursue the terms of a statute, if the statute is mot a prohibitory one and no improper practices havs been resorted to to obtain it. Lartigue v. Baldwin, 5 M. Rep. 194; Villers v. Armstrong, 4 Mart. N. S. 25; Morgan v. Burst, 4 Id. 117 122; and paar ticularly Andrew Morse v. Isaac Hodson, 5 Mass. Reports, 314; Baker v. Haley, 5 Grocnleaf, 240; Winihrop v. Dockendorff,[ 3 Greenl. 156, and 2 Crunch, 28.
    
       5. The bond, creates a joint and several liability under the law of Mississippi, although it should express but a joint liability on the face. It • nnd several one. Statutes of Mississippi, edition of 1840, p. 578, "was a joiiau *... - • .
    6. Interestat the rate of eight per cent! to k SS?™4 from the maturity of the note. Same edition of the Statutes, p. 275, sect. 16, -•
    Peyton, contra,
    insisted that the judgment siICl'l'Lbe maintained, because the bond sued on is a replevin bond, and the suit in Mississippi' \vaS-óBsjnissedt in consequence of its execution. Mo action can be maintained on it here or elsewhere, as the plaintiffs have no judgment.
    2. The officer in levying the attachment had no authority to require in his official capacity any other than a replevin bond; although the parties might have compromised the case, and a bond for the debt might have been given. In that case the papers would not have been returned into court; but all proceedings must have been dismissed. Howard & Hutchinson’s Statutes of Miss. chap. 43, sects. 11, 12, 13, 14, 15, and 25; pp. 548, 549, 550, 551, 554.
    3. In all cases of attachment before the debt is due, it is repleviable in the same manner as other attachments. Id. sect. 25. Section 19 prescribes the duty of the sheriff in replevying property seized.
   Garlanb, J.

delivered the opinion of the court.

The plaintiffs, holders of two promissory notes amounting to 0698 50, drawn by Massey & Wasson, residents of Mississippi, instituted a suit against them by attachment in Hinds county, before the notes fell due, alleging the drawers were about to remove to Texas. The attachment having been levied on property belonging to Massey & Wasson, they gave a bond with several sureties (of whom the defendant is one,) in double the amount of the sum [74] claimed, the condition of which was, if Massey & Wasson should pay the amount of the notes sued on at maturity, the bond should be void - otherwise to remain in full force and effect. The notes were not paid when they became due, and the defendant being temporarily in this State was sued on. his obligation and held to bail. When this bond was taken, it was handed by the officer who executed the attachment to the plaintiffs or their attorney, .and the suit was dismissed by them at their costs.

The defendant contends that as the attachment was dismissed in Mississippi the bond thereby became void, and further that the bond was not taken in accordance with the statute of that State, and therefore null. Under the laws of this State such a bond would probably be of no validity, but this case is to be decided upon the statute of a sister State, upon the proper-construction of which, we regret there is no decision of their tribunals to enlighten us.

The 25th section of the Act of June 7th, 1822, found in Howard & Hutchinson’s compilation of the Statutes of Mississippi, pp. 553, 554, authorizes the issuing of attachments before the debt is payable, it prescribes the cases, the oath to he taken and the hond to he given by the plaintiff, and the mode of service by the officer. The law then says, “ If siich debtor shall not, pn or before the return of such attachment, enter into bond, with sufficient security, for the payment of the said debt when it shall become payable, the court on due proof of the justice thereof and of the intention of the debtor to remove, or of his having actually removed out of the State, shall grant judgment as in other cases of attachment ” against the debtor or garnishee, and execution is to be stayed until the debt becomes due, or the property sold payable when it is due. The proviso to the section further says: “ All such attachments shall be repleviable in the same manner as other attachments are by law repleviable,” and the debtor may defend the suit as in other cases.

This statute we think authorizes the debtor to give one of two bonds, [75] either of which, if properly taken, binds him and his sureties. If he does not wish to defend the suit and wishes to release his property, he may give a bond to pay the debt at maturity, and then the fair inference from the statute is, the creditor cannot proceed to judgment, but must stop his suit as was done in this case; but if the debtor wishes to defend in the attachment he may replevy the property, enter his appearance'and defend himself, and if the creditor is defeated in his attachment in any manner, the bond is avoided. In this case, Massey & Wasson gave the bond to pay the debt at maturity, the defendant signed it as their surety, the suit was dismissed, as appears by the evidence, on motion of the counsel of the plaintiffs; we therefore think the bond was properly taken, and that the defendant is responsible for the debt and interest, which is proved to he at the rate of eight per cent, per annum, and also for three dollars and fifty cents, the cost of protest.

It is therefore ordered and decreed, that the judgment of the commercial court be reversed and annulled; and this court proceeding to render such-judgment as ought to have been rendered in the court below, further orders, adjudges and decrees, that the plaintiffs, Ohurch & Kyle, do recover of and have judgment against the defendant, Isaiah Henry, for the sum of seven hundred and two dollars, with interest at the rate of eight per centum per annum on the sum of five hundred and twenty-eight dollars and fifty cents (§528 50), from the 4th day of June, in the year 1839 until paid, and like interest on the sum of one hundred and sixty-nine dollars ($169), from the 4th day of July, in the same year, until payment, and also for costs in both courts.  