delivered the opinion of the court.

It is contended for appellee that the attachment herein is dis*76charged and the property levied upon released, for the reason that the appeal was not perfected within five days after the expiration of the term of the court at which the judgment was rendered; and, furthermore, that, under the provisions of section 3, chapter 64, acts of the legislature of 1884, entitled “An act relating to damages in attachment cases,” the suit itself has abated, and, hence, that we can only dismiss the appeal. We think this contention in its entirety is not maintainable.

On an examination of section 2435, code of 1880, and of section 3 of the act of 1884, just referred to, it is manifest that by the delay of more than five days in perfecting the appeal after the exjfiration of the term of the court at which judgment was rendered discharging the attachment, the attachment has been discharged and the property levied upon has been released. The right to proceed in rein, in .this action, clearly has been lost, but the right to proceed, in personam, in this dual form of action, still survives. The judgment on the defendant’s plea of abatement traversing the grounds of the attachment, declaring the wrongfulness of the suing out of the attachment, will discharge the attachment and release the seized property, if not appealed from within five days, and, if acquiesced in and unappealed from altogether, it will also abate the suit itself. The appellants have lost their right to proceed further against the property levied upon by their failure to perfect their appeal within the statutory period of'five days, but they have not, by such delay, lost their right of appeal to this court for the purpose of testing the correctness of the judgment of the lower court which pronounced the attachment wrongfully sued out. It is certain that the general right of appeal to this court was not intended to be taken away or impaired by either the section of the code, or the legislative enactment, hereinbefore cited. The unsuccessful plaintiffs below may appeal from that, as from any other judgment, and if the same shall be reversed, they may then proceed in their action for a personal judgment.

The right to this appeal being thus shown, we are now to examine the correctness of the judgment of the court below in holding the attachment to have been wrongfully sued out. That judgment *77was upon a verdict which the court had peremptorily instructed the jury to find for the defendant on his plea in abatement, and the inquiry is, was this action of the court warranted ?

If there was no evidence in the case upon which a verdict in favor of the plaintiffs, and against the wrongfulness of the suing out of the attachment, might have been based; or, in other words, if the evidence was such that this court would not have permitted a verdict for plaintiffs to stand, if one had been rendered on the plea in abatement in the court which tried the issue, then the action of the court in peremptorily instructing for the defendant was correct. Otherwise, the ruling complained of was error.

Was there, then, any evidence which supported, or tended to support, the grounds of the suing out of the attachment, and on which the jury might have found for the plaintiffs ? If there was such evidence, then it should have been submitted to the jury for its consideration and determination.

An examination of the evidence constrains us to the opinion that there was such proof before the trial court, and we are therefore of the further opinion that the jury should have been permitted to pass upon the sufficiency of the testimony introduced to support the attachment.

Desiring to be clearly understood as intimating no opinion touching the vreight of any part, or of all of the evidence, we content ourselves by saying, that the sale by appellee and the other joint owner of fifteen hundred acres of land to appellee’s wife, and the retention in his possession, presumptively, of his part of the purchase-money paid, to wit, five hundred dollars, against the right of his creditors to have it appropriated to the payment of their demands ; the appellee’s statement to the effect that he could pay the debt, represented by the witness Mims, but that he preferred to wait a short time, when he would have money coming to him from a certain draft, and that he would then pay, coupled with the fact that he did not so pay; the sale of the stock of goods, and the cotton on hand, to appellee’s mother within a few days after the sale of the lands to his wife, in payment, as was alleged, of his note in *78favor of bis mother for $4858.79 ; the testimony of J. W. Peyton showing from appellee’s mercantile books of account, among other things, that the mother was credited on said books with one note only of $4500, and that on January 28,1888, the mother was given credit for $456.08, interest on that note, yet, that in September of the same year, the appellee was made debtor to his mother in the further sum of $852.61, interest to date; all these, we say, were matters in evidence which should have been submitted to the jury, under proper instructions, for their consideration and determination in arriving at a conclusion as to the wrongfulness of the suing out of the attachment.

We repeat, we are making no intimation as to the value of this evidence, but, seeing it here plainly before us, we are constrained to declare, in our opinion, that the peremptory instruction should not have been given for the defendant, but that the whole case, on the issue tried, should have been given to the jury.

It follows that the attachment is discharged and the property levied upon is released, but that the appellants are entitled to a new trial in accordance with these views, and the judgment is, therefore,

Reversed and cause remanded.