Amason v. Nash

GOLDTHWAITE, J. On the part of the appellant it is insisted, that the action should have been brought in the name of the injured party, and that, as it was brought in the name of the obligee for his use, the demurrer should have been sustained. The statute (Clay’s Dig. 221, § 3), it is true, provides that the bond may be put in suit in the name of the party injured ; but the word “ may,” as there used, is not imperative. The object of the statute was, simply to confer upon certain persons the privilege of suing in their own names ; but it is a question in which no public right or interest is involved, or in which any third person has any claim de jure, that the power should be exercised. It is entirely discretionary with the' parties to whom the privilege was extended, whether-to avail themselves of it or not. —The Newburgh Turnpike Co. v. Miller, 5 Johns. Chan. R. 112; Malcolm v. Rogers, 5 Cow. 188; Perkins v. Moore, 16 Ala. 9. But in overruling the demurrer to the pleas, the court erred. The pleas and demuri’er were both in short; and if the parties see proper to adopt that mode of pleading, the language will be fairly and liberally interpreted. —Jackson v. Jackson, 7 Ala. 791. Under the influence of this rule, we regard the pleadings of the defendants as equivalent to joint and several pleas, that the administrator, the principal in the bond, had fully adminis* [282] tered the assets which came to his hands ; and as the sureties were not liable beyond the assets (Clay’s Dig. 228 § 34; Miller v. Gee, 4 Ala. 359; Dean v. Portis, 11 Ala. 104), it follows that, if he had fully administered them, it would be a good defence so far as the sureties were concerned. The court, therefore, erred in sustaining the demurrer to the several pleas of all of the defendants except George Amason. The court also erred in rendering judgment final without the intervention of a jury. The bond alone was not the foundation of the action. To entitle the plaintiff below to a recovery against the sureties, it was necessary for him to establish a devastavit on the part of the administrator; and his recovery could not exceed that amount; —Miller v. Gee, supra; Dean v. Portis, supra. The judgment is reversed, and the cause remanded.