56 Ala. 336 | Ala. | 1876
The material ground of demurrer to the complaint, as amended, is, that the suit is brought by one only, of the four obligees of the bond; and it is insisted in support of it, that an action for a breach of the condition
The bond is payable to the obligees jointly, and its condition is for the payment to them of “ all such damages as they may sustain from the wrongful or vexatious suing out of the attachment.” It contains no covenant to or with, nor any stipulation in favor of the obligees severally. The unqualified rule of the common law is, that an action on a bond or covenant must follow the nature of the interest disclosed on its face. If the interest so disclosed is joint, the action must be in the name of all the living obligees. If the interest is several, the action must be several. — Add. Con. 946; 2 Chit. Con. 1340. In Gayle v. Martin, 3 Ala. 593, a bond was executed for the replevy of a steamboat, payable to several libellants, with condition to pay several and distinct judgments in favor of each; and it was held, that the legal interest was vested in all the obligees, and all must join in an action for its breach. The precise question raised by this demurrer was presented in Boyd v. Martin, 10 Ala. 700, in an action on a bond given to obtain the issue of an attachment, which was levied on the property of one only of the several defendants and obligees. An action for a breach of the condition, it was held, was properly brought in the name of all the obligees.
The covenant or obligation is joint, or joint and several, or several, according to the nature of the interest disclosed within its four corners. The action must follow the nature of that interest: there is no right of election in the obligees, to sue upon it severally or jointly, because of the damages resulting from its breach. — 2 Chit. Con. 1351. The obligation or covenant will be construed joint or several, according to the interest of the parties, as that appears on its face, if the words are capable of that constructiogu. To authorize the construction, when the interest is prima facie joint, that the obligees can take or sue severally, it must be manifest that it was intended a separate and distinct duty should arise to each of them. — Add. Con. 947.
As we have said, the bond in all its terms is joint, not several. There is no ground for argument from these terms, or the purposes for which the bond is required, that will justify its interpretation as operating to create a several interest in the obligees. The indemnity of each and all the obligees, who are defendants in the writ of attachment, against any and all damages resulting from the wrongful or vexatious use of the process, is the purpose of the bond. Each one and all are entitled to its security. If one could sue, and recover the damages he had sustained, the penalty of the bond might
2. What a party may say cotemporaneously with the doing of a particular act, may, in general, be proved, as constituting a part of the res gesta?., if it is explanatory of, or tends to characterize the act. The sale by the appellee to Kelly was the res gestee — it was, as we infer, the act which induced the assertion that the appellee was about removing the crop without paying the rent. It was certainly competent for the appellee to show that payment of the rent, before removing the cotton, was one of the terms of sale. — Pitts v. Burroughs, 6 Ala. 733.
Eor the error in overruling the demurrer to the complaint, the judgment must be reversed, and the cause remanded.
