O'Quinn v. Patterson

1. In a suit on a bond given for the forthcoming of property levied upon under a mortgage foreclosure, the measure of the plaintiff's damages, upon a breach of the condition of the bond being shown, is the value of the property at the time of the execution of ■ the bond, the amount of the damages in no ease to exceed the amount due on the execution levied. Civil Code (1910), § 6043. Thus, in such an action a surety may plead in defense that the amount sought to be recovered is not due, because of a payment made by the surety on the indebtedness and not credited on the mortgage. Barrett v.…