59 Ga. 204 | Ga. | 1877
In a claim case, the jdaintiff’s execution was against two defendants, one as principal, the other as security, and was for the sum of $360.00,-besides interest. The levy was upon land, as the property of the security, and to this land the claim was interposed. After the plaintiff had made a prima facie case, the claimant introduced the judgment on which the plaintiff’s execution was founded, with the entire record of the proceedings in which that judgment was rendered. These proceedings were by a landlord against his tenant holding over, and were commenced by affidavit, alleging the nonpayment of rent according to contract, demand for possession, and refusal to deliver. Warrant issued to remove the
Possibly,' a bond with the prescribed condition would have been valid- if no penal sum whatever had been expressed therein, and if valid at all, it would have been good to the extent of the whole recovery against the jnineipal; but here is a bond in which the security has limited his undertaking by a definite expression of the amount. lie stands for eighty dollars only. The officer might not have been obliged to accept such a bond, but he did accept, ft, and it; contains the security’s contract and the money-measure of his liability. Perhaps without such a limitation as to amount, he' would not have signed it. ¥e do not know of any instance in which more than the penalty of a bond can be recovered of a security. The Code, section 3575, properly construed, does not contemplate anything of the kind. It provides for a less, not for a greater, recovery. The law will sometimes disregard express qualifications in legal transactions, on some such principle as setting aside conditions repugnant to the main grant, (see 6 Ga., 92,) but the amount of a bond is too important to be treated in that way, when it comes to en
Judgment affirmed.