
    CLARK et al. v. HORN, sheriff.
    June 12, 1896. By two Justices. Argued at the last term.
    Action on bond. Before Judge Fish. Webster superior court. April term, 1895.
    
      S. R. Stevens j by G. W. Stevens, for plaintiff in error.
    
      J. B. Hudson, contra.
   Lumpkin, J.

Where exempted personalty was levied on under the provisions of section 2028 of the code, and the defendant, upon filing the counter-affidavit therein provided for, gave to the levying officer a bond conditioned for the delivery of the property at the time and place of sale, if upon the trial of the issue formed by the filing of such affidavit the property should be found subject, Held:

1. An order' of court dismissing the counter-affidavit and directing that the levy proceed was so far an adjudication that the property was subject as to render it obligatory upon the defendant and his surety to deliver the property to the officer, as stipulated in the bond, upon his readvertising the property for sale. Williams v. Empire Printing Co., 97 Ga. 445.

2. Upon their failure so to do, the sheriff could maintain in his own name against the principal and surety an action upon the bond for the breach of the same. Judgment affirmed.  