Moody v. Morgan

By the Court.

McDonald, J.

delivering the opinion.

The 11th section of the garnishment and attachment Act of 1856, {Pamphlet 27,) makes it the duty of the officer levying an attachment, to deliver the property levied on to the defendant, upon his giving bond with good security, payable to the plaintiff in attachment, obligating themselves to pay the plaintiff the amount of the judgment and costs that he may recover in said cause, It is an absolute bond, without a condition of any sort, which the statute requires.' A bond for the payment of the debt and costs absolutely. The undertaking of the obligors to the bond under consideration, is for the forth-coming of the boat levied on, and delivered to the defendant, on the day of sale.

There is a great difference between a bond for the payment of a judgment absolutely; and one for the production of property liable to it, on the day of sale. In the first case, there is no condition, in the second, there is a condition, and that condition is of the essence of the obligation. It cannot be rejected without annulling a most essential part of it, which cannot be done.

Prior to the passing of the Act of 1856, the Sheriff, if he thought proper, might have delivered the property levied on by him by virtue of a fi-,fa. or other legal process, to the defendant, and a bond taken by him for the delivery of it on the day of sale, or at any other time, was declared to be good and valid in law and recoverable. Cobb 534.

The bond in this case does not conform to the Act of 1829, in all respects, but the condition of it is in precise accordance with that of bonds legalized by that Act. It certainly is not the bond required to be given by the Act of 1856, under which it is contended that it is good and valid; and the attachment law must be strictly construed. The judgment

the Court below must be reversed.

Judgment reversed