
    Bank of Alabama vs. Fitzpatrick.
    1. The execution of a bond as required by statute is a necessary prerequisite to the issuance of an attachment bill; and where the bond is not such as is required by the statute, it isthesame thing as though there was no bond; and in either case,a motion to dismiss is the proper remedy.
    2. The question of the right of complainant to amend an attachment bond, cannot be made in the Supreme Court, unless a motion to amend was made in the Chancery Court.
    
      Nicholson and Houston, for Bank of Alabama.
    
      Wright and Ewing, for Fitzpatrick.
   Green, J.

delivered the opinion of the court.

This is an attachment bill filed in the Chancery Court at Columbia. The bond executed by the complainant contains no clause of indemnity for wrongfully suing out the attachment. The defendant executed a replevin bond, regained possession of his property, and moved to dismiss the bill; and the bill was dismissed by the Chancellor, and the complainant appealed to this court.

It is now insisted, that the Chancellor erred in dismissing the bill, because advantage could only be taken of the defect in the bond by plea in abatement.

We think the motion to dismiss was regular. The execution of a bond, as required by the statute, was a necessary prerequisite to the issuance of the attachment. 1 Dev. 400.. It is admitted, that the bond in this case is not such as the statute requires. It is, then, the same thing as though there was no bond. In such a case, a motion to dismiss is the proper remedy. 4 Yer. Rep. 81; 6 Yer. Rep. 474. ,

But it is insisted, that this defect of the bond was not of such character as to make the whole proceedings void, but that they were voidable only, and therefore subject to amendment.

It is not necessary to discuss this question, inasmuch as there was no motion to amend made in the court below; and certainly the court did not err, in failing to make an order that the' party did not ask for; and as we act upon the record and can reverse for error apparent upon that only, there is no ground for this argument, however we might think the question should be decided, if properly made.

Let the decz'ee be affirmed.  