McWhirter v. Frazier

SHARPE, J.- This suit is upon the second one of two writings similar in most respects given by the defendant McWhirter as security for the costs in his contest Of the plaintiff’s election to the office of tax collector had under the Code of 1886, and which resulted adversely to McWhirter. The case of Frazier v. McWhirter, 121 Ala. 308, was a suit on the obligation first given as such security and rules this case to the extent of establishing the plaintiff’s right to Sue on the instrument here involved. The only question here raised going to the merits of the defense and left unanswered by the opinion in the case referred to is, whether this undertaking is supported by a consideration. For the defense it is asserted that there is a want of consideration for that the undertaking was promised after the other obligation had been approved as security for costs and that it was given in compliance with an order of the probate judge whose authority to require security is said to have been exhausted by his acceptance of the .first obligation. The position is untenable. The statute required McWhirter to give security for-the costs of the contest not to exceed in amount $500. — Code of 1886, § 398. Liability on the obligation first given was limited to $250. It is not averred or contended that $250 was sufficient to cover the costs. To make the security sufficient, if it was not originally so, was necessary to a compliance with the conditions upon which the law, independent of the probate judge’s order, gave the right of contesting the election. That, the contestant might be availed of that right was a valuable consideration for giving the new security. Proof of the judgment rendered on.the contest was relevant as,showing that the -contest had ended and tjie costs were due, [454] The amount of the costs 'haying been proved by. a witness without contradiction the admission of the certified statement of costs if error is not ground for reversal. Tyson v. Chestnut, 118 Ala. 387. The judgment will be affirmed.