
    LOVEJOY v. WOOLFOLK
    An action for the breach of'a bond given under section 4708 of the-Civil Code for the purpose of obtaining a garnishment is an action arising ex contractu, and consequently within the jurisdiction of a justice’s court, when the amount of the damages claimed does not 1. exceed one hundred dollars.
    Argued June 24,
    Decided July 26, 1898.
    
      Certiorari. Before Judge Lumpkin. Fulton superior court,: September term, 1897.
    
      Bennett J. Conyers, for plaintiff.
   Lumpkin, P. J.'

The only question presented in this case is, whether or not an action for the breach of a bond given under section 4708 of the Civil Code, for the purpose of obtaining' a garnishment, is an action arising ex contractu or ex delicto. Manifestly, it is of the former class. The plaintiff in a garnishment case, in giving such a bond, contracts with the defendant, in the suit or judgment upon which the garnishment proceeding is based, “to pay said defendant all costs and damages that he may sustain in consequence of suing out said garnishment, in the event that the plaintiff fails to recover in the suit, •or it should appear that the amount sworn to be due on such judgment was not due, or that the property or money sought to be garnisheed was not subject to process of garnishment.” When, therefore, it has been judicially determined that the property or money sought to be reached by the garnishment was not subject thereto, and it appears that the defendant to whom the bond was payable has suffered actual damages by reason of the suing out of the garnishment, it becomes the duty of the-principal and surety in the garnishment bond to pay over to the obligee therein the amount of such damages. A failure or refusal so to do is a breach of the contract expressed in the bond, and such breach clearly gives rise to an action ex contractu. It follows that if the damages, claimed in a case of this kind do not exceed one hundred dollars, the action may be brought in a justice’s Court.

Judgment reversed,.

All the Justices concurring.  