
    16765.
    Harris v. Hines, administrator.
    Affidavits, 2 C. J. p. 36(1, n. 9.
    Appeal and Error, 4 C. J. p. 649, n. 35; p. 1000, n. 23.
    Arrest, 5 C. J. p. 476, n. 70 New; p. 514, n. 48; p. 520, n. 18 New; p. 521, n. 34 Now.
    Replevin, 34 Cye. p. 14 72, n. 91.
   Stephens, J.

1. Where a defendant in a bail and trover proceeding petitions the court for a discharge, as provided in section 5154 of the Civil Code (1910), and the respondent fails to file a written answer to the petition, the respondent is not to be considered as in default, but may appear and introduce evidence in rebuttal of that offered by the petitioner.

2. In a trover suit the following description of the property sued for is sufficient to identify the property: “One-half peck of silver money in 100, 250, 500 and $1.00 denominations, and a large amount of paper currency, lawful money of the United States of the denominations of $1.00 and $5.00, all of which, both silver and currency, being contained in a certain small sack of bedticking, being the same sack in which Carter Cogman carried his money and in which he kept it; all of which money, while contained in said sack, was delivered to the defendant Luke Harris by Carter Cogman about four weeks before his death to keep for him, the said Cogman, and which bag of money the said defendant accepted from the said Carter Cogman to keep for him.” This ruling is distinguishable from the rulings in Harper v. Jeffers, 139 Ga. 756 (78 S. E. 172), and McElhannon v. Farmers Alliance Co., 95 Ga. 670, 674 (22 S. E. 686). The petition for discharge, therefore, was not subject to dismissal upon the ground of insufficiency of description in the petition in the trover suit.

3. The nature of the original affidavit as the basis for bail, and not an inaccurate copy of this affidavit served upon the defendant in trover, should be looked to in determining the validity of the affidavit for bail. The attestation of the original affidavit by “H. C. Walker, C. S. C. Putnam County, Ga.” purports to be an attestation by H. C. Walker, clerk of the superior court of Putnam county, Georgia, an. officer authorized to attest affidavits. The affidavit is therefore prima facie valid.

4. In a petition for discharge by the defendant in trover, who is under arrest for failure to produce the property or to give bond therefor, where in his petition for discharge he recites the institution of the trover suit, the requirement as to bail, and his arrest and imprisonment for failure to produce the property, it is immaterial that there nowhere appears an entry by the sheriff of service upon the petitioner, as the defendant in trover, of the petition and process in trover, or of the application for bail, or other service.

5. Certain evidence as to declarations made by the intestate oE the plaintiff in trover, which were admitted in evidence over the objection of the petitioner, was harmless to the petitioner where, in the written finding and judgment of the court who acted as the trior of the facts, such evidence was disregarded and not considered.

6. The evidence authorized the finding that the petitioner had in his custody or could produce the property sued for in trover, and the court did not err in remanding the petitioner to custody and refusing his discharge.

Decided May 14, 1926.

Trover; petition for discharge; from Putnam superior court-judge Park. August 1, 1925.

17. T. Davidson, for plaintiff in error.

Sibley & Sibley, Allen & Pottle, and M. P. Adams, contra.

7. Since there was no error and the judgment should be affirmed, the motion of the defendant in error to dismiss the bill of exceptions, on the ground that by a subsequent release from custody of the petitioner this case has become moot, will not be passed upon.

Judgment affirmed.

Jenldns, P. J., and Bell, J., eoneur.  