Walker v. Chambers & Co., 85 Ga. 136

Walker v. Chambers & Co.

85 Ga. 136 | Ga. | 1890

Blandford, Justice.

This was an action brought by the plaintifi' against the defendants upon a delivery bond given by the defendants to the plaintiff, conditioned to deliver to the levying officer, when called for, certain property which had been levied on by him as the property of Chambers & Co. in a certain illegality ease, where an affidavit of illegality had been made by Chambers & Co. to an execution issued upon the foreclosure of a chattel mortgage at the instance of the plaintifi', Walker. The action alleges that the plaintiff suffered damages by reason of the deterioration of the property after the affidavit of illegality was made; not that the property had not been delivered to the levying officer when called for, after the illegality had been determined *138against Chambers & Co.; but he contended that he was entitled to recover the same under a certain section of. the code (§3326), which section applies to forthcoming bonds given in claim cases, and is taken from the acts of 1855 (p. 34) and 1873 (p. 42). Even in claim cases, until the act of 1855, as embraced in the code, no action could be maintained upon a forthcoming bond, in such cases, for any hire or deterioration of the property. This was extended by the act of 1873 to all other claims in the cases therein provided for; but we are clear that this action cannot be maintained under this section of the code, or under any other section. It is clearly shown from the allegations in plaintiff’s declaration that there has been no breach of the bond; but, on the contrary, that the defendants kept their bond up to the date and time of the commencement of this action. So we think the court committed no error in sustaining the demurrer to the plaintiff’s declaration.

Judgment affirmed.