68 So. 582 | Ala. Ct. App. | 1915
The reporter will set out count 2 of the complaint, which fully states plaintiff’s case.
(2) It is insisted that, if an action on the bond can be maintained at all, it can only be done after a demand for its payment; but we are cited to no authority, and know of none, so holding. We find the general rule, which is applicable to the contract here sned on, to be to the contrary.—9 Am. & Eng. Ency. Law (2d Ed.) 199; Garnett v. Roper, 10 Ala. 842.
After the overruling of their demurrers to the complaint, the defendants pleaded thereto the general issue and three special pleas, to each of which special pleas a demurrer was sustained — properly so, we think. Two of these special pleas sought to raise practically the same questions as were raised by the demurrer to the complaint; one setting up that the plaintiff by obtaining judgment against the principal obligor in the bond and by failing to obtain a judgment against the sureties, on the trial of the appeal which the bond was given to secure, released the sureties; and the other setting up that the plaintiff by so doing estopped himself from prosecuting this action on the bond against the sureties. The case of Jaffe v. Fidelity & Dep. Co., supra, disposes of, as before said, these questions contrary to the contention of appellants.
As to the last contention of appellants, to the effect that the court erred in declining, as recited in the judg
Affirmed.