12 Ga. App. 11 | Ga. Ct. App. | 1912
Lead Opinion
The Underwood Typewriter Company instituted bail-trover proceedings against Yeal, to recover a typewriter. Yeal declined to make a forthcoming bond and delivered the machine to the sheriff. The plaintiff did not replevy the machine, and it remained in the custody of the sheriff until the trial. Pending the trial the plaintiff voluntarily dismissed the suit, and thereupon the trial judge, at the instance of the defendant and over the objection of the plaintiff, directed the jury to find a verdict in favor of the defendant for the proven rental' value of the machine during the time it was in the possession of the sheriff, and a judgment was entered accordingly. The case is here for review on exceptions to this direction of a verdict and to the judgment thereon. In a trover suit, where the plaintiff gives bond and takes the property upon the refusal of the defendant to do so, and is cast in the suit, the defendant is entitled either to recover from the former the property in his possession, or to take a judgment and have execution for the value of the property. In other words, the defendant, like his opponent, is entitled to an election of verdicts. Mallary v Moon, 130 Ga. 591 (61 S. E. 401). In Marshall v. Livingston,
Dissenting Opinion
I dissent, because I think the plaintiff can not be made to pay hire when the property is'left in custodia legis. In my opinion the law does not thus penalize a plaintiff in a trover action, unless he gives bond and uses the property pending the litigation. If neither party gives bond and takes the property, neither can be made to pay hire while the property is in the sheriffs possession.