Agnew v. Leath

63 Ala. 345

Opinion

STONE, J.

Leath sued out an attachment against Johns, returnable before a justice of the peace. It was levied on personal chattels, by Hamilton, as constable. Johns replevied the property, giving Agnew as his surety. The replevin bond should have been made payable to Leath, plaintiff in attachment, but was made payable to Hamilton, the constable. — Code of 1876, §§3683, 3289, 3689. This, then, is not a statutory bond, on which statutory proceedings can be maintained. It is, at most, only a common-law obligation, or bond, on which a common-law action can be prosecuted. The bond, not being for the payment of money, must be sued in the name of the person having the legal title. It does not fall within the influence of section 2890 of the Code, which allows suits to be prosecuted in the name of the party really interested, whether he has the legal title or not. That section is confined to actions on contracts, express or implied, for the payment of money. Leath can not maintain the present suit, in his own name. — Sprowl v. Lawrence, 33 Ala. 674, 684. The complaint, on its face, shows this state of facts, and the demurrer to it ought to have been sustained.

Many questions are raised by the record, but it is not likely they will come up again in their present form.

Reversed and remanded.