91 Ga. 765 | Ga. | 1893
Young obtained a judgment against J. C. Waldrip, and had it levied upon a mule as the property of the defendant. Mrs. Waldrip claimed the mule, and gave a forthcoming bond to the sheriff, whereby she agreed to produce it on the day of sale if it should be found subject. Upon the trial of the claim case the property was found subject, and it was readvertised by the sheriff". On the day appointed for the sale the claimant failed to produce the mule. Suit was brought upon the forthcoming bond, and a plea was filed alleging that the mule “did after giving said bond die without any fault or negligence upon the part of either of the defendants; and therefore they were unable to produce said mule to the sheriff as stipulated in said bond; and these defendants say that their inability to produce said mule was on account of his death; and that this was sufficient in law to excuse and free them from their obligation to produce it under the bond.” To this plea the plaintiff demurred on the ground that it set out-no legal defence to the action. The demurrer was overruled; and the court, acting by consent of the parties without a jury, tried the'case and decided that the claimant was not liable. To this ruling and "finding the plaintiff excepted.
All that appears from the record as to the manner of the mule’s death is the following: “Defendants proved by J. C. Waldrip that he was the husband of Mrs. Frances Waldrip, and that the mule was killed by having its leg broken by stepping in a post-hole which was concealed by an overgrowth of grass, from which the mule died without fault or negligence on his part or on the part of his wife, and the injury to the mule occurred
The falling of a mule into a post-hole overgrown and concealed with- grass, if this occurred on the premises of the person chargeable with the care of the mule, is
Judgment reversed.