Bell v. Thomas , 8 Ala. 527 ( 1845 )

GOLDTHWAITE, J.

1. The judgment in this case, so far as the plaintiffs in error are concerned, seems to have been prematurely rendered, inasmuch as the condition of the bond is. to deliver the boat to the sheriff on a particular day, or'to pay the judgment of the Court. In point of fact, the day fixed for the delivery 'of the boat, is the same as that upon which the judgment was rendered. It is essentially different from a stipulation tp pay the amount for which judgment shall be rendered. It seems to have,been taken under the act of 1841, [Dig. 140, § 28,] and varies in its legal effect from that required by the previous act of 1836. [Dig. 139,. §23.]

2. It is not important to inquire whether-the bond taken is in precise conformity with that required by statute, for if it .was variant from that, and could only be supported as a common law obligation, yet it is within the jurisdiction of a Court, proceeding according to the course of admiralty practice, to render judgment on such an obligation as an incident to the principal cause. [The Allegator, 1 Gall. 145.]

The other questions raised in the cause, question the sufficiency of the judgment of condemnation against the boat, and cannot be investigated by individuals interested only as stipulators. [Livingston v. Steamboat Tallapoosa, 9 Porter, 111; Witherspoon v. Wallis, 2 Ala. Rep. 667.

For the premature judgment against the stipulators in the bond, the judgment, so far as it affects them, must be reversed, and if the plaintiff chooses, he may proceed to fix their liability.

Reversed as to Bell and Casey.