dissenting. I dissent from the ruling that the Civil Court of Fulton County did not have jurisdiction to entertain the action.
Under Code §§ 89-418, 89-419, and 89-421, a surety on the official bond of a sheriff is liable to every person who is injured by any wrongful act committed under color of his office. The *274measure of damages is the amount of injury actually sustained; and where no damage is actually sustained, if the officer has not acted in good faith, the jury may award smart money. In Harris v. Black, 143 Ga. 497 (4) (85 S. E. 742), it was held that, in a suit on a sheriff’s bond, though special damages claimed may not be recoverable, the petition will not be dismissed because the plaintiff has the right to prosecute his action in order to vindicate his right. “The fact that a tort by the officer is disclosed does not render the action one ex delicto.” Copeland v. Dunehoo, 36 Ga. App. 817, 820 (138 S. E. 267). See also Powell v. Fidelity &c. Co. of Maryland, 45 Ga. App. 88 (163 S. E. 239); Powell v. Fidelity &c. Co. of Maryland, 48 Ga. App. 529 (173 S. E. 196); Glens Falls Indem. Co. v. Dempsey, 68 Ga. App. 607 (23 S. E. 2d 493).
The case of Cantrell v. Davis, 176 Ga. 745 (169 S. E. 38), relied on by the defendants is not controlling. In that case a mother sought to recover damages because of the negligent homicide, of her minor child. There the action was ex delicto against the person who committed the tort. Here the action is against the surety on the tortfeasor’s bond, on a cause of action which arose out of the breach of the bond, and is therefore an action ex contractu.