10 Ala. 828 | Ala. | 1846
There would be a peculiar hardship in holding the plaintiff liable as a trespasser, for an act in which he never participated, and of which, in the majority of instances, he is entirely ignorant. We can perceive no sound distinction between the effect of an office, or statutory judgment, and one rendered in the due course of the courts. In the one instance the clerk is the officer upon whom the law casts the onus of determining the existence of the fact which warrants the issuance of the execution, and in the other the consideration is given by the court. If either the one or the other commits an error of judgment, the laws afford ample opportunities for its revision, and the prevention of any injury from it.
The authorities we have quoted, would amply justify the rejection of any description of parties, sums, &c. in the recitals of the bond, which were not in accordance with the fact, but in the present case, no repugnancy is made to appear. We are not informed the sums stated in the condition is not the true aggregate of the judgment, damages, and costs, and we have already remarked, that because an execution is recited as having issued against Lunsford, it is not conclusive that it issued against him alone. The case of Coleman v. Crumpler, 2 Dev. 508, which is supposed by the counsel for the plaintiff to contain a principle which should govern this, is by no means analagous. There the contract was, to perform and abide by such final decree as might be rendered in a suit wherein John Crumpler and Mary Crumpler are defendants. On a replication to the plea of conditions performed, the plaintiff averred that a suit was pending in which John Crumpler and Mary Coleman were defendants, and that the defendants had not paid the decree rendered in that suit. On the issue it was shown that the bond was given in this suit, with the mistake in the name, but the court held parol evidence insufficient to warrant a recovery. Without stopping to consider whether this decision is in harmony with others which we have already quoted, it is sufficient to remark, that the contract made by the obligors, was with reference to a particular suit, and it might well be a matter of doubt, if another suit could be intended without the reformation of the contract by a court of equity, but in the present case the contract is with reference to the delivery of cotton, and the pend
On the whole, after giving this case the fullest consideration we are satisfied there is no error.
Judgment affirmed.