Mitchell v. Turner

37 Ala. 660

Opinion

R. W. WALKER, J.

The English rulé is, that'a person cannot be plaintiff in an-action against others,- on a contract made by those-others jointly with him. — Mainwaring v. Newman, 2 Bos. & Pull. 120; Moffatt v. Von Mullingen, 2 Chitty’s Rep. 539 ; 3 Rob. Pr. 301. Without at this time committing-.ourselves to this-rule, in the broad terms in-which it is here stated; we are satisfied that one of the sureties on a sheriff’s bond cannot maintain an action at law on such - bond- against his co-sureties. The plaintiff,’ being co-surety with the defendants, and bound ’ equally with them to make good the sheriff’s default, cannot recover the whole amount of them, The loss must be apportioned among the sureties, and this a court of lawns incompetent to do.^ — See Tindall v. Bright, Minor, 103; Chandler v. Shehan, 7 Ala. 251 ; Carroll v. Bowie, 7 Gil, 34, (41-3 ;) Milburn v. Codd, 7 B. & Cr. 419.

[2.]. There is nothing in the objection, that, the plea was a.plea in abatement, and should have been sworn to. A plea in abatement ought to give a better writ; but the matter alleged in this plea shows that the plaintiff can have no action at all, and was therefore properly pleaded in bar. Mainwaring v. Newman, 2 Bos. & Pull. 121; Moffat v. Von Mullingen, 2 Chitty, 539.

Judgment affirmed.