102 Ala. 282 | Ala. | 1893
This was an action by appellants as plaintiffs upon an injunction bond. The suit is by plaintiffs in their representative capacity as executors of James W. Sloss, deceased. The bond is made payable to plaintiffs as executors, and to them individually. The fiat of the court enjoined them both in their individual and representative capacity. The condition of the bond is “ to pay or cause to be paid all damages which any person may sustain by the suing out of said injunction, if the same is dissolved by the city court of Birmingham,” &c. One count of the complaint avers, that the injunction was wholly dissolved ; and in another count it appears, that the injunction was made perpetual against the plaintiffs in their individual capacity, and dissolved only as to their interest as executors. The instrument, the foundation of the suit, is not a promissory note, bond, or other contract for the payment of money, within the class of cases in which it is declared in section 2594 of the Code, that actions on such instruments must be prosecuted in the name of the party really interested ; nor is the suit within the provision of section 2575 of the Code, which declares that suits "for any breach of an official bond or undertaking of any officer of this State, executor, administrator or guardian, or of any bond or undertaking given in an official capacity to the State, or any officer thereof, the person aggrieved may sue in his own name, assigning the appropriate breach.” The rule at common law, and which has not been changed by statute, as to actions upon such bonds, required that the suit be prosecuted in the name of the owner or holder of the legal title, and for the use of such persons as were the beneficial owners. — Gayle v. Martin, 3 Ala. 593; Boyd v. Martin, 10 Ala. 700; Sprowl v. Lawrence, 33 Ala. 674; Masterson v. Phinizy, 56 Ala. 336; Morrow v. Woods, 56 Ala. 1. We are, therefore, of opinion that the suit should have been brought in the
It is next contended that as the injunction was dissolved only as to a part of the obligees, there has been no breach of the condition of the bond; and further that as all the obligees of the bond against whom the injunction was made perpetual have no cause of action, none can sue, — in other words that unless all are entitled to recover, none of the parties can maintain the action. We think there is a wide difference between the legal effect of a breach of the condition of the bond under consideration, and the breach of a bond, conditioned to pay all such damages as the obligee or obligees might sustain. The condition here is to pay “all damages any person may sustain by the suing out of said injunction, if the same is dissolved,” &c. The right of action is given to “any person” who may be damaged by the suing out of the injunction, if the same is dissolved. Section 3524 of the Code reads as follows : “In other cases the party must give bond, with surety in such sum, as the ■ officer granting the application directs, payable to and approved by the register, and conditioned to pay all damages and cost which any person may sustain, by the suing out of such injunction, if the same is dissolved.” This section was amended by the act of 1888-89, p. 116, but the only change made by the amendment is, that the bond is made “payable to the party against whom the application is granted.” The condition of the bond is precisely the same. If the section of the Code had remianed in force, there is no doubt that, upon- the dissolution of the injunction, suit could be brought in the name of the register, for the use of “any person” sustaining damage. The fact that the amendment requires the bond to be made ‘ ‘payable to the party against whom the application is granted,” does not change the legal effect of a breach of the condition. Upon the dissolution of the injunction, “any person” who has sustained damage is entitled to recover. If the action was on an official bond under section 2575, supra, it is expressly provided that “the person aggrieved may sue in his own name ; ’ ’ and so, if on certain instruments under section 2594, the person beneficially interested must sue. These are statutory provisions, regulating the pleadings in such cases ; but when the suit is brought on an instrument like the one at bar, there being no.statutory provision, the common law gov
Affirmed.