
    15822.
    United Cigar Stores Company of America v. O’Connor-Schweers Paint Company.
    Decided April 10, 1925.
   ¡Stephens, J.

1. On tlie trial of an issue formed by a distress warrant and tlie counter-affidavit of the tenant, where the tenant had replevied the property and had given bond for the eA'entual condemnation money as provided by the Civil Code (1910), § 5391, where-it appeared that, more than four months after the levy of the distress warrant, the tenant was adjudicated a bankrupt, the plaintiff could nevertheless, upon proof of the indebtedness, proceed to take a judgment against the bankrupt, as the basis of a judgment against the surety on the' bond, on condition that a stay of execution be granted as against the bankrupt. Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S. E. 25).

2. The court erred in overruling the motion of the plaintiff to enter up judgment against the defendant on condition that the execution thereon be stayed.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.

Distraint; from Richmond superior court—Judge A. L. Franklin. July 21, >1924.

Pierce Brothers, for plaintiff.

P. II. Rowe, for defendant.  