Comm'rs' Court of Butler Co. v. McCann
23 Ala. 599
Ala.
1853
Check Treatment
CHILTON, C. J.

That tho declaration in this case presents a flagitious violation of duty on the part of the defendant, arising out of his contract as superintendent of the poor-house, there can be no question, hut it is insisted that no action lies on the part ,of the Commissioners’ Court to recover for it.

It is very clear that no action on tho part of the Commissioners’ Court could deprive the unfortunate subject of the injury of her action, or whoever may be entitled under the circumstances to sue for the seduction; but conceding this, the question recurs, can the Commissioners’ Court recover the additional expense incurred by tho county in medical hills and &uperadded attention required on account of the injury.

In Anthony v. Slaid & Wife, 11 Met. Rep. 290, the declaration averred that the plaintiff had contracted for the support of all the poor in the town of Adams, at a fixed sum per annum, and undertook to support them at his own risk in sickness and in health.; and that the defendant’s wife committed an assault and battery upon one of the town paupers, by means of which he was hurt, and the plaintiff was thereby put to increased ex-penso for his cure and support. Tho Court of Common Pleas held, that tho action was not maintainable. On error to the Supreme Court, it was held that the decision was right. Shaw, G. J., in delivering tho opinion, said, “ It is not by means of any natural or legal relation between the plaintiff and the party injured, that the plaintiff sustains any loss by the act of the defendant’s wife, but by means of tho special contract by which he had undertaken to support the town paupers. The damage is too remote and indirect.”—See also Lamb v. Stone, 11 Pick. R. 527, and Crouse v. Overseers of the Poor, 11 Johns. R. 167 mar.

The foregoing cases aro quito persuasive to show that the ac*602tion is not maintainable, but we prefer to rest our decision on a point less doubtful, and to leave this question undecided.

The act “ for tho support of paupers in the County of Butler” requires, “that before any superintendent shall enter upon the duties of bis office, be shall enter into bond, with two or more good securities, in the sum of one thousand dollars, payable to tho judge of the County Court of Butler County and his successors in office, eonditionfed for the faithful discharge of the duties of his office.” — Acts ’44 p. 7.

This provision seems to indicate the intention of the legislature to confer the legal right of action upon the county judge, and not upon the Commissioners’ Court of Roads and Revenue. Be this, however, as it may, it is clear that no action could be maintained on the bond, except in the name of the county judge, who is the payee.

The duty alleged in the declaration to have been violated arises out of the contract, and this action to recover for a tortious violation of it, although inform ex delicto, is nevertheless, in fact, in the nature of an action ex contractu. The party entitled to sue has his election, either to proceed on the contract to recover for the injury, or to treat as a tort the violation of the duty which the law implies as arising out of the contract, and sue in case. The actions in the given case are concurrent, the one direct upon the contract, the other collateral to it, but both dependent on it; and the party who is legally entitled to sue on the contract can alone maintain the collateral remedy.

In Tollit v. Sherstone, 5 Meeson & Wel. R. 283, this question came before the Court of Exchequer, and it was held to be a clear proposition of law, “ that an action of contract cannot be maintained by a person who is not a party to the contract; and that the same principle extends to an action of tort arising out of a contract.”

If it be granted that, whether the action be brought in the name of the judge, or of the Commissioners’ Court, the recovery would enure to the benefit of the county, still this does not obviate the necessity of suing in the name of the party having the legal right of action. Besides, this suit is not brought for the use of the county, and the Commissioners’ Court has no beneficial interest.

*603Our conclusion therefore is, that the Commissioners’ Court have no legal right of action, and hence the demurrer to the declaration was properly sustained.

Let the judgment be affirmed.