Frost & Crenshaw v. Gibson ( 1877 )

Jackson, Judge.

This was a suit brought by the plaintiffs against the defendants, under section 3326 of the Code, which makes the claimant of property, when attached, and his securities, liable to pay to plaintiffs in attachment damages for the hire and use of the property claimed, and its deterioration in value while in claimant’s possession after levy of the attachment.

After the evidence was all in, the court granted a non-suit, and the plaintiff excepted. The question, therefore, is this: was the nomsuit right ?

The grant of the non-suit, under our practice, is simply the sustaining a demurrer to the evidence.

It admits all alleged to be true, and then declares to the plaintiff, admitting your case as you make it, tlie law grants you no relief or remedy — you have no right or standing in court.

In this case, the plaintiffs proved, or offered to prove, the judgment and fi. fa., the levy and advertisement, the sale of the property after delivery by the claimant, the value, of its use and hire, and its deterioration.

The court ruled out some of the evidence offered, particularly the fi. fa. and advertisement, and non-suited the plaintiffs. Admitting that all the evidence was in, and none ruled out, we think that the non-suit was right.

This is an action brought on the statute against a surety, and he has the right to stand on strict law. The plaintiffs’ own evidence showed that the advertisement was illegal— it not being for twenty-eight days, as the statute, Code, §3647, requires, which declares that it shall be weekly for fov/r weeks. It is true that an innocent purchaser would be protected, notwithstanding the irregular advertisement; but this is a different case. It is a proceeding against the claimant and his security for damages. It is like a suit for failure to deliver the property. It is an action really outside of the express terms of the surety’s bond, and if there be any case where the doctrine strieUjwris should apply to surities, it is this.

In suits for recovery on the forthcoming bond, it seems that the regularity of the advertisement is essential. 9 Ga., 42; 55 Ib., 606; 54 Ib., 581, 676. The reason of the rule is fully applicable to this case, for while a purchaser would be protected if innocent, yet people are timid to buy, and might not bid as much as if the advertisement was regular; and as the whole recovery is for the balance of the judgment — as it cannot exceed that in any event — -the property ought to be sold so as to bring the last cent it is worth before a "surety shall be held bound beyond the express terms of his bond.

• Eor this reason, we think that in this class of cases the plaintiff might comply strictly with the law, especially the due and legal advertisement of the property, and if he does not see that done, he cannot recover.

■ Judgment affirmed.