Ward v. McLamb

Turner, J. 1. Where an execution against a principal and sureties is levied on property of the principal which, on being claimed, is found subject, if the plaintiff receives therefor, irregularly and without a judicial sale, a sum less than its value, the sureties will be entitled to be discharged from said fi. fa. to the extent of the actual value of the property. Atlanta National Bank v. Douglass, 51 Ga. 205, 209; Lewis v. Armstrong, 80 Ga. 402, 407; Small v Hicks, 81 Ga. 691; Marshall v. Dixon, 82 Ga. 437; Griffeth v. Moss & Co., 94 Ga. 199; Montgomery & Co. v. Martin, Id. 219. 2. On the trial of an illegality, filed by one of the sureties on whose property the fi. fa. was levied, reciting, in effect, that the plaintiff in fi. fa. had released property of the principal defendant for the sum of ninety dollars, which was credited on the fi. fa., but which property was averred to be worth two. hundred dollars, it was error for the judge to direct a verdict which, in effect, discharged the surety altogether. Judgment reversed. All the Justices concur.