McBarnett v. Breed , 6 Ala. 476 ( 1844 )

GOLDTH WAITE, J.

1. The omission to set out in the appeal bond, that the suit was in the name of Frazier for the use of McBarnett, is a matter of no importance whatever, because the latter is to be cons.dered as the actual plaint.ff, and is the only one who could enter into the bond for the appeal. This will seem entirely clear when our statute, providing that a suit shall not abate in consequence of the death of a nominal plaintiff, is considered. [Clay’s Digest, 313, § 3].

2. In Qumn v. Adair, [4 Ala. Rep. N. S. 315,] we held, that the statute, requiring the party appealing from a justice’s judgment to give bond and security for the appeal, applied as well to the plaintiff as to the defendant; but as the penalty of the bond is only to be in double the amount of the judgment below, it is evidently, in most cases, a very insufficient security. The circumstance that it is so, will not, however, warrant us in saying, that the surety can be made liable beyond the penalty of the bond. Here, the penalty is only for 5 25-100 dollars; and although the judgment does not state the amount of the costs, we feel obliged judicially to notice, that they must necessarily exceed that sum.

The proper judgment, in this case, would have been, that the defendant recover of the plaintiff and Kerr, his security in the appeal bond, the costs of this suit, not exceeding the penalty of the bond; and if the same shall be found to exceed the said penalty, then the excess beyond of the said plaintiff. As this judgment is a clerical mis-entry, which, under the statute, [Clay’s Digest, 322, § 54,J could have been amended by application to the court below the, amendment must be here made at the costs of the plaintiff in error.