88 Ga. 524 | Ga. | 1892
The mules were sold conditionally, the seller retaining title. The note given for the purchase money contained a stipulation “ to pay ten per cent, counsel fees and all other expenses incurred in the collection of this claim.” Nothing was paid. The purchasers had the possession and use of the mules. After the term of credit had expired, the seller, instead of suing on the note for the purchase money, brought an action of complaint in the nature of trover to recover the mules and hire for the same. At that time the mules were in the possession of defendants, and the plaintiff had made no previous demand on them for possession. Bail was required to secure the forthcoming of the property to answer the result of the action. As a consequence of this requirement, the mules were seized by the sheriff, and the evidence indicates that, the defendants failing to give the requisite bail-bond, the plaintiff or his agent gave bond and thus replevied the property and acquired possession. Subsequently the mules were sold under
A new trial, however, is not necessary, but the judgment is reversed with direction that the counsel fees be written off by the plaintiff', and that the judgment when thus modified stand affirmed, the cost of the writ of error, both in this court and the court below, to be paid by the defendant in error.
Judgment reversed, with direction.