Mutual Fertilizer Co. v. White & Son

Stephens, J.

A bond executed by the claimant in a claim case, conditioned to pay to the plaintiff in fi. fa. all damages which the latter “may sustain . . in case it should appear that said claim was made for the purpose of delay only,” substantially complies with the Civil Code (1910), § 5158, which provides that the bond required of the claimant shall be “conditioned to pay the plaintiff all damages which the jury on the trial of the right of property may assess against him in case it should appear that said claim was made for the purpose of delay only.” Civil Code (1910), §4(6). Whatever damages a jury may in such a case “ assess ” will, in contemplation of law, be such damages as the plaintiff in fi. fa. has “ sustained,” and therefore are recoverable under the bond. See, in this connection, Civil Code (1910), §§ 5169, 5173;, 5 Cyc. 751.

Judgment affirmed.

Jenkins, P. J., and Hill, J., concur.