Governor v. Davis

9 Ala. 917 | Ala. | 1846

ORMOND, J.

The case cited from 1 Stewart, 388, certainly determines, that this suit should have been brought in the name of the Judge of the County Court, instead of the Governor; but we are clear in the opinion, that the construction there put upon the statute is incorrect. The whole purpose of the Legislature, in the act referred to, [Clay’s Digest, 222, § 10,] was to place the sheriff, when he became ex officio, an administrator, upon the same footing with other administrators ; and to make his official bond as sheriff, stand as a security for his acts as administrator, as well as sheriff, and .this bond being executed to the Governor, should be put in suit in his'name, for the use of the person injured.

When such a bond is put in suit, the real plaintiff on the record, is the person for whose use the suit is brought, who is alone responsible for the costs. The Governor, or Judge of the County, is a formal party, whose name is stated as the authority of the true plaintiff upon the record, for bringing the action. A mistake in this matter, cannot possibly mislead, or prejudice the defendant; it is therefore matter of form, and not substance, which cannot be reached by a general demurrer, and which is amended by other parts of the record. ■ .

In Bagby, Gov. v. Chandler, 8 Ala. 233, we held, that the action was well brought in the name of the obligee, though he was-not in fact the executive officepof the State, when the suit was brought; and many other analogous decisions have been made by us, all tending to establish, in such cases as the present, that the mention of the name of the obligee, is matter of form, and not substance. From this view, it results, that the demurrer to the declaration should not have been sustained for this cause, and no other defect has been brought to our notice.

Let the judgment be reversed, and the cause remanded.