Wall v. Mount

Lamar, J. (After stating the foregoing facts.) The cotton was under levy. Presumptively it would have been sold and the proceeds turned over to the plaintiff in fi. fa. The sale was prevented by the claimant giving a bond in which he bound himself to return the property in the event it was found subject to the execution on the trial of the claim case. This bond was improperly made payable to Wall, the plaintiff in fi. fa., instead of to Watson, the levying officer, as required by the Civil Code, § 4615.. It [834] was therefore defective as a forthcoming bond. But if it was the means by which the possession was changed from the constable to the claimant; if it served the purpose for which it was given; if it injured the plaintiff and benefited the principal, it was not void, but effective as a common-law bond. The obligors, having secured the advantage arising from having the instrument treated as valid, ought not to be relieved from liability by securing the additional advantage of having it treated as invalid. And there are many cases in our reports where, though bonds failed to comply with the order or statute under which they were given, the principals and their sureties were held liable thereon by virtue of a common-law liability. The benefit secured was sufficient consideration to support the cause of action thereon, irrespective of any question depending upon the fact that the instrument had a seal. It was error to exclude the bond when it was offered in evidence. Farmers Co. v. Middle Georgia Co., 94 Ga. 673 ; Ware v. Laird, 93 Ga. 342 ; White v. Spillers, 85 Ga. 555; Everett v. Westmoreland, 92 Ga. 671 (4); Anderson v. Blair, 118 Ga. 212 ; Stephens v. Crawford, 1 Ga. 574; Justices v. Sloan, 7 Ga. 34; Stephens v. Crawford, 3 Ga. 499 ; Dennard v. State, 2 Ga. 137; Park v. State, 4 Ga. 329; Jones v. Gordon, 82 Ga. 570 ; Justices v. Ennis, 5 Ga. 571; Colley v. Morgan, 5 Ga. 178; Faircloth v. Freeman, 10 Ga. 251; Bowden v. Taylor, 81 Ga. 199 (2). Even if the contention of plaintiff is correct, this was not a suit upon a forthcoming bond, and there was no presumption that it was given for exactly twice the value of the property levied on, and nothing to indicate that the recovery could be limited to $50. Besides, the right to appeal is fixed by the pleadings. This being an action on a bond in the penal sum of a hundred dollars, the court properly refused to dismiss the appeal on the ground “ that the original summons and cause of action did not show that the amount involved exceeded $50.” But, for the reasons stated on the other branch of the case, there should be a new trial. Judgment reversed. All the Justices concur.