Measure of damages for obligor's breach of bond.

- Measure of the obligee's damage by reason of the obligor's breach of the bond in delivering the property, at the time and place of sale, in a damaged condition is the difference between the value of the property at the time the obligor received the property under the bond and the bond's value when produced at the time and place of sale with interest thereon. Dickens v. Maxey, 42 Ga. App. 783, 157 S.E. 368 (1931).

Property need not be sold to establish damages.

- In order to establish the obligee's damage for such breach, it is not necessary that the property actually produced, which is in a damaged condition, or is not all the property mentioned in the bond, be sold by the levying officer. Dickens v. Maxey, 42 Ga. App. 783, 157 S.E. 368 (1931).

Effect of partial delivery.

- When the obligor delivers only a portion of the property at the time and place of sale, or delivers the property in a damaged condition, and the production and tender of the property is not accepted by the levying officer as being a compliance with the condition of the bond, the obligee's damage may be established upon proof of the value of the property at the time of the property's delivery to the obligor under the bond and the property's value when produced at the time and place of sale. Dickens v. Maxey, 42 Ga. App. 783, 157 S.E. 368 (1931).

No damage results when property delivered is worth more than enough to satisfy execution. Grace v. Finleyson, 10 Ga. App. 480, 73 S.E. 689 (1912).

Value of levied property is fixed by levying officer in order to set the amount of the forthcoming bond and that amount is prima facie evidence of the value of the property as against the claimant. Bearden v. GMAC, 122 Ga. App. 180, 176 S.E.2d 652 (1970).

Defendant in fieri facias is bound by agreed valuations in bond for the specific properties. Jones v. Donaldson, 19 Ga. App. 705, 91 S.E. 1061 (1917).

Surety may defensively plead that amount sought is not due.

- Surety may plead in defense to a suit on a bond that the amount sought to be recovered is not due because of a payment made by the surety on the indebtedness and not credited on the mortgage. O'Quinn v. Patterson, 42 Ga. App. 499, 156 S.E. 464 (1931).

Cited in Brand v. Craig, 84 Ga. 12, 10 S.E. 369 (1889); Law v. Mullis, 37 Ga. App. 329, 140 S.E. 430 (1927); Manufacturers' Fin. Acceptance Corp. v. Bradley, 50 Ga. App. 138, 177 S.E. 272 (1934); Dampier v. Citizens & S. Nat'l Bank, 129 Ga. App. 240, 199 S.E.2d 330 (1973).

C.J.S.

- 33 C.J.S., Executions, § 192 et seq.

ALR.

- Right of obligor in action on forthcoming bond or receipt for return of property seized under process to set up title in himself, 37 A.L.R. 1402.