Mitchell v. Ingram

38 Ala. 395

Opinion

A. J. WALKER, C. J.

A reply*, to all the objections made to the complaint in the court .below, is found in the incontrovertible proposition, that the bond is good at common law, although, by reason of its non-conformity to some statutory requisitions, it cannot be enforced in the summary manner pointed out by the statute. — Meredith v. Richardson, 10 Ala. 828 ; Whitsett v. Womack, 8 Ala. 466 ; Branch Bank at Mobile v. Darrington, 14 Ala. 192; Alston v. Alston, 34 Ala. 15.

[2.] The omission of seventy-four cents in the description of the attachment, is an immaterial variance. The attachment, “ and the description of it in the bond, corresponding in all other respects, we cannot doubt that they are the same.” — See Anderson v. Rhea, 7 Ala. 104, where a similar objection is considered ; also, Dickson v. Bachelder, 21 Ala. 699. Besides, the variance was susceptible of explanation by parol proof. The evidence introduced for that purpose was'admissible, and established the identity of the attachment with that described. — Meredith v. Richardson & Oneal, 10 Ala. 828.

[3.] The conveyance of 9th November, 1857, by A. D. Waller to the defendant, was inadmissible.. The tendency of such evidence was to show title in another than the defendant in the attachment; ■ and this the obligor in the delivery bond was by-his bond estopped from .doing. — Meredith v. Richardson, supra ; Mead v. High & Blue, 4 Ala. 279 ; Jamison v. Cozens, 3 Ala. 636; .Dunlap v. Clements, 18 Ala. 778; Braley v. Clark, 22 Ala. 361; Cooper v. Peck & Clark, ib. 406; Gray v. McLean, 17 Ill. 405 ; Bursley v. Hamilton, 15 Pick. 40 ; Page & Bacon v. Butler, 15 Mo. 73; Dezell v. Odell, 3 Hill, 215 ; Savage v. Gunter, 32 Ala. 469 ; Gary v. Hathaway, 6 Ala. 164.

The decisions above cited from our own reports, when followed to their legitimate sequences, commit this court to the proposition, that the obligors in a forthcoming bond, which has been forfeited, cannot be permitted, when the suit is on the bond, to controvert' the defendant’s property in the replevied things, by showing either an entire or a partial want of title. Hence, the proof of pre-existing liens was inadmissible.

Judgment affirmed.