Atlcinson, J.
This case is controlled by the decision of this court in the case of Fourth National Bank of Cincinnati v. Mayer, 96 Ga. 728" date_filed="1895-05-13" court="Ga." case_name="Fourth National Bank v. Mayer">96 Ga. 728. Judgment affirmed.
Attachment was sued out and levied. Not having been replevied, an order for sale of the property as perishable, after ten days advertising, was regularly granted. At the sale it brought $75, and after paying costs and expenses, $43.32 remained in the hands of the levying officer. The plaintiff in the attachment dismissed it, after which the amount last named, by order of court, was paid over to defendants, who then brought suit upon the attachment bond. Upon the- trial it appeared that the market value of the property when levied upon was $133.20, that defendants paid $25 counsel fees in defense of the attachment suit, and that the costs therein were $8. In defense to this suit on the bond it was set up, that defendants were justly indebted to plaintiff in attachment the amount therein-claimed, that the ground of attachment was true, and that plaintiff in attachment did not fail to recover therein, but dismissed the same before trial; and 'in support of this defense testimony was offered, that the debt upon which the attachment was founded was just and true, and that defendants therein resided without the limits of the State. This plea was stricken on demurrer, and the testimony rejected; whereupon defendants in attachment recovered judgment for $122.88.
Barroio & Osborne, for plaintiff in error.
Eckoaré 8. Ettiott, contra.