
    Purdy, administrator, v. Dunn Machinery Company.
    September 15, 1914.
    Trover. Before Judge Hammond. Bichmond superior court. April 12, 1913.
    
      W. K. Miller, for plaintiff in error. C. E. Dunbar, contra.
   Atkinson, J.

1. An affidavit to require the defendant to give bail in an action of trover may be made by an attorney at law of the plaintiff. Civil Code, § 5150.

2. The statute cited in the preceding note does not require affiant to state his reasons for believing that the property will be eloigned or moved away.

3. Under the principles announced in Fender v. Ramsey, 131 Ga. 440 (2), 442 (62 S. E. 527), there was no error in striking so much of defendant’s plea as sought to recoup damages on account of alleged malicious abuse of process in instituting the action.

4. Where one makes an entire contract to sell goods to another upon terms that the buyer is to have credit, upon his giving notes for the purchase-money, secured by a conditional-sale contract reserving title in the seller until the purchase-money is paid, and after delivery of the goods the purchaser, on demand, refuses to pay for them or execute the notes and conditional contract of sale, the seller may repudiate the contract and bring trover to recover his goods. Purdy v. Dunn Machinery Co., ante, 308. But if, after notice of the purchaser’s refusal to give the notes and execute the conditional contract of sale, the seller omits to disaffirm the sale, but, on the basis of a sale, prepares and files for record a statutory claim of lien against the realty of the purchaser for the value of the goods delivered, he will be held to have made his election, and will not thereafter be heard to repudiate the sale on the ground of such failure to pay.

(a) It was error to strike so much of the plea as set up the plaintiff’s election as above mentioned, and estoppel against repudiating the contract, and in ruling on the admissibility of evidence on the basis that there could be no such election or estoppel.

Judgment reversed.

All the Justices concu/r.  