
    5842.
    Salmon, constable, for use, etc., v. Lynn et al.
    
    Decided May 5, 1915.
    Appeal; from Gordon superior court — Judge Fite. May 29, 1914.
    
      Lang & Henson, for plaintiff. J. G. B. Erwin, for defendants.
   Wade, J.

1. No legal defense to an action on a forthcoming bond, the execution and breach of which were not denied, was presented by a plea setting up that the title to the property described in the bond was not in the principal maker at the time of its execution, and that the surety thereon had been garnished by the plaintiff, in another suit, brought for the recovery of the same debt from the principal, and had been discharged by the judgment in the garnishment proceeding.

2. In an action on a forthcoming bond, no issue can properly be raised as to the title to the property involved. When the execution of the obligation is not denied, the only question to be decided is whether or not there has been a breach of the bond. O’Neill Mfg. Co. v. Harris, 127 Ga. 641 (56 S. E. 739); Hatton v. Brown, 1 Ga. App. 747 (57 S. E. 1044). Rowland v. Page, 4 Ga. App. 269 (3) (61 S. E. 148). See, in this connection, Barfield v. Covington, 103 Ga. 190 (29 S. E. 759); Oliver v. Warren, 124 Ga. 549 (53 S. E. 100, 4 L. R. A. (N. S.) 1020, 100 Am. St. R. 188); Jones v. Kendrick, 94 Ga. 645 (21 S. E. 831); Anderson v. Banks, 92 Ga. 121 (18 S. E. 364); Aycock v. Austin, 87 Ga. 566 (13 S. E. 582).

3. Whether or not the bond sued upon was by its terms made payable to the plaintiff, as provided by section 3301 of the Civil Code, is immaterial, since such a bond would be “a good common-law bond, and suit could have been brought on it in the name of the sheriff [levying officer] for the use of plaintiff in fi. fa. Wall v. Mount, 121 Ga. 831 (49 S. E. 778); Stroud v. Hancock, 116 Ga. 332 (42 S. E. 496).” Gelders v. Mathews, 6 Ga. App. 144 (64 S. E. 576). The suit in this case was brought in the name of the lawful constable, for the use of the plaintiff.

4. The court erred in overruling the demurrer to, the plea filed by the defendants. Judgment reversed.  