Bowen v. Penny

76 Ga. 743

• Court: Supreme Court of Georgia
• Decided: May 1, 1886
• Status: Published

Opinion

Blandford, Justice.

This was an action of debt upon a forthcoming bond given in a claim case, the claim having been interposed by John 0. Penny, trustee for his wife, M. T. Penny. The property having been found subject to thQfi.fa. levied thereon, and the same being perishable property, and having been consumed by the claimant, the suit was instituted, alleging the foregoing facts.

There was a general demurrer to the sufficiency of the plaintiff’s declaration. This demurrer the court sustained, and dismissed plaintiff’s action, and thereupon plaintiff excepted, and error is assigned thereon to this court.

1. The allegations in the declaration show a breach of the bond, as they show the property replevied had been entirely consumed by claimant •, hence there was no necessity for a re-advertisement of the property, as the claimant could not produce it. 55 Ga., 606.

2. This action is against John C. Penny individually. Although he signed the bond as trustee for his wife, M. T. Penny, his is an individual liability. The words “ trustee for M. T. Penny ” are words of description merely, and in nowise restrict his liability. He put in the claim, the property levied on was turned over to him, and was consumed by him, and he is liable to the plaintiff.

Judgment reversed.