Boyd v. Martin , 10 Ala. 700 ( 1846 )

ORMOND, J.

The question presented by the demurrer to the plea is, whether the plaintiffs can maintain a joint action upon the bond, the attachment having been levied on the separate property of each, in which they had not a joint interest.

The general rule in regard to contracts, as laid down in all the books, is, that where the legal interest, and the damages resulting from a breach of the contract is joint, the contractees must all join in an action thereon, although the contract be in terms joint and several. [Eccleston v. Clipsham, 1 Saund. 153, in note; Brown on Actions at Law, 116 ; 1 Chitty’s P. 2, 11.] But if it appears from the deed, that the interest is several, although the covenant is in terms joint, the action must be several. [Note to case cited, 1 Saund. 153.]

We think it perfectly clear, that it appears from the bond, that the interest in the damages is joint. The writ of attachment authorized a levy upon the property of both, or either of the defendants, and as it could not be known in advance in what manner the attachment would be levied, the covenant was very properly entered' into with both jointly. There is nothing in the statute requiring these bonds to be given, forbidding this conclusion. All the defendants, where there are more than one, are equally liable to the plaintiff, and equally exposed to the burden of defending the suit, and for this purpose, must be considered- as but one person in legal estimation.

The case of Gayle v. Martin, 3 Ala. 593, goes the full length of establishing the doctrine here maintained, and indeed goes beyond it, as it was there held, that a bond to a number of obligees, conditioned to pay several and distinct judgments in favor of each, must be sued in the name of all, as the legal title was vested in all. How the damages are to be divided between the plaintiffs, is a matter with which the defendants have no concern, as they will be protected by this recovery from another action, by both, or either.

The remark made in Hill & Rushing v. Wood, 4 Ala. 214, that a suit upon an attachment bond is to be governed in all respects by the rules applicable to the action on the case, has no application here. All that is meant by that observation is, that the surety upon the bond is responsible, precisely as his principal was, in an action on the case, previously to the change of the law, requiring a suit against the principal, before an action could be brought against the surety on the bond.

Let the judgment be reversed and the cause remanded.