Buckner's Adm'r v. Stewart

B. W. 'WALKER, J. 1. It may be, that an obligation payable to “ James L. Evans, register in chancery,” is, without more, prima fade payable to him individually ; the addition “register in chancery,” being regarded as descriptio personae. But this prima-faeie intendment may be repelled by the body of the instrument; and if, by reference to that, it is seen that the obligation is one which the law required should be taken by, and made payable to, the register in his official capacity, the mere fact that the promise is expressed to be to James L. Evans, register, instead of to him as register, does not deprive the bond of its character as a statutory obligation. The terms of the injunction bond, as set out. in this complaint, clearly show that it is one of a class of obligations which the law requires shall be taken by, and made payable to, the register as such, and that it was designed to be given íd conformity to the statute. If, in other respects, it has the requisites of a statutory bond, the court will consider it as given in compliance with section 2973 of the Code, and subject to all the. remedies provided in relation to bonds [534] given under that section. — See Chapman v. Spence, 22 Ala. 591; Polk v. Plummer, 2 Humph. 500 ; Boles v. McCarty, 6 Blackf. 427 ; 1 Iredell, 155; 4 Humph. 334; 3 Dev. 284; 1 Hayw. 144. A note payable to A. B., executor, may be sued on by the executor as such, upon the averment that it was made to him as executor, and is assets of the estate. — 1 Chitty’s Pl. 20 ; Arrington v. Hair, 19 Ala. 244 ; Harbin v. Levi, 6 Ala. 399 ; Dunham v. Grant, 12 Ala. 105. 2. The Code requires that the bond shall be in double the amount of the judgment. — Code, § 2973. The objection that this cannot be considered a valid statute bond, because it;s penalty is greater by ten dollars than that required by law, is too technical to meet our approval, though it must be admitted that in some of the States this has been held a fatal defect. But the view which we take of the question is sustained by authority, and is certainly consonant to reason. — Bagby v. Chandler, 9 Ala. 770; McCaraher v. Commonwealth, 1 Watts & Serg. 21; Treasurer v. Bates, 2 Bailey, 376. Whether, in a statutory proceeding on such a bond, the sureties could be held liable beyond the prescribed penalty, we need not inquire. Nor do we intimate an opinion as to what would be the effect upon the bond, as a statutory obligation, if the penalty were less than that required by law. 3. It is at least questionable whether this court would revise the action of the court below in overruling a motion to suppress a deposition, unless the particular grounds of objection were specified when the motion was made. Walker v. Smith, 28 Ala. 569. We think, however, that there is nothing in the objection which is here suggested to the deposition of the witness Brame. The defendant was sued “as administrator of John L. Buckner,” and he is so styled both in the summons and complaint. The other papers in the cause were, prima fade, sufficiently identified by simply describing the defendant “as administrator.” Such defects in the commission may be supplied by other parts of the record. — Reese v. Beck, 24 Ala. 658 ; Jordan v. Hazard, 10 Ala. 221; Evans v. Norris, 1 Ala. 511. [535] 4. The right of the plaintiff to demand contribution from his co-surety was in no sense dependent on the insolvency of their principal. The liability of the sureties was fixed upon the dissolution of the injunction, and either surety had the right, without even waiting for an execution to issue, to pay off the amount due on the bond, and claim contribution from his co-surety. — 1 Parsons’ Contr. 34 ; Odlin v. Greenleaf, 3 N. H. 270. Judgment affirmed.