49 Ky. 160 | Ky. Ct. App. | 1849
delivered the opinion of the Court.
The names of the defendants are stated in the plaintiff’s amended declaration just as they were written by them to the bond upon which the suit was brought, and it is well settled that an obligor may be sued by the name in the bond, whether it be his full name or not; and if the declaration be against the defendant in his right name, though it varies from that in the process, he cannot, even at common law, plead in abatement: (1 Chitty’s Pleadings, 486.) And if it cannot be pleaded in abatement, it certainly is not available upon general demurrer.
But under our statutes regulating civil proceedings and the disregard of mere technicalities consequent upon the liberal practice which they have introduced, the objection made in this case, to the variance between the process and the amended declaration is immaterial, and should have been totally disregarded, if it can be denominated a variance at all. The defendants in the declaration are sued as W. G. Hughes and Phi. Berry, agreeably to their signatures to the bond. The process issued against them as W. alias Willis G. Hughes and Phi. alias Philander Berry. This is clearly neither a substantial variance, nor a misnomer. And even if it could have been so considered by the strict rules of the
But although the demurrer to the declaration is said to have been sustained by the Court below, on account of this supposed variance between the declaration and the process, other objections are now urged to it, which it becomes necessary to consider.
The defendants are sued upon a bond executed by them on the 16th of May, 1842, as the sureties of a Constable. By the law then in force, Constables remained in office for the period of two years and no longer. It is contended that the plaintiff’s declaration contains no allegation of any breach of the bond within the two years.. So far as the plaintiff has attempted to charge a breach growing’out of the collection by the Constable, and his failure to pay over the amount of certain specified executions, the objection seems to have been well taken. This breach is alleged to have occurred on the — day of-1844, hut whether before or after the expiration of the two years does not appear. The dates and the return days of the executions are stated, and it is averred that they came to the hands of the officer while they were in full force. But, as the return day in both executions was subsequent to the expiration of the two years, the averment may be true, and yet the executions may never have reached the-hands of the officer until the liability of the defendants on the bond executed by them, had ceased and determined. It is also averred that the executions were delivered to him for collection while he was acting as Constable. But as he might have been re-appointed, and have continued to act .as Constable, it does not necessarily follow, from this allegation, that he received them during his continuance in office, under his appointment made at the time the defendants executed the bond up»on which this suit was brought.
But it is also contended, that the breaches are all defective because the death of the Constable was averredV in. the plaintiff’s declaration, to have occurred before the commencement of the suit, and there is no averment that the money which he collected had not been paid to the relator of the plaintiffs by his representatives, after his death.
This was an action of debt upon the bond, for the penalty, against the surviving obligors, the Constable-having died. The declaration,in setting out the breaches of the condition, alleged that the officer, after having, collected the debts placed in his hands for collection,, failed and refused to pay the money over to the relator,, and that the defendants failed to pay the same, although often requested, &c., whereby they became liable to pay to the plaintiff, for the use and benefit of the relator, the penalty of the bond ; yet said defendants, although requested, had not paid the same to the plaintiff, nor did the said Dickey, the Constable, in his lifetime, pay the same.
The declaration showed a breach of the condition of the bond by the Constable in his lifetime. For that breach, the remedy at common law, the bond being joint, was against the surviving obligors alone. No ac-
And as the demurrer was general, and the declaration contained one good breach, the demurrer should have been overruled, and it was erroneous to sustain it to the whole declaration..
Wherefore, the judgment is reversed and cause remanded, with directions to overrule the demurrer, and for further proceedings consistent with this opinion.