CHAUDRON vs. FITZPATRICK, Gov'r, &c.

CHAUDRON vs. FITZPATRICK, Gov’r, &c. 1. A demurrer to a plea opens the previous pleadings and readies bach to the dedaratiou. . 2. A bond taken by the justice of the peace from a parly charged with the paternity of a bastard, conditioned for his appearance at court. &c„ as required by the statute, (Clay’s Dig. 13£. % 2,) is properly made payable to the Governor of the State for the time being and his ' successors in office. tt. An action of debt on a bond payable to the Governor for the time being and his successors in office cannot be maintained in the name of the obligee, as Governor, after he has gone out of office, unless ;he suit is brought for the use of a third person who may be respon- ■ sible for the costs and entitled to the recovery. Error to tlie County Court of Mobile. Peecy Walker and CaMpeell, for plaintiff in error: -The declaration is bad — 1st. Because it should have been' iii "the name of the successor of Fitzpatrick. — 4 Wend. 406. 2, Because there is no averment that the defendant, Hoskins, was called to appear according to the tenor of the bond. — 4 I\. Hamp. 866. The ruling of the court below on the second plea was erroneous, as the judgment thereon was not rendered upon a default of i-iie defendant, Hoskins, to appear, hut upon his not abiding the order of the court. The replication to that plea is the only part of the record averring any breach. The judgment below is erroneous. There should have’been a jury, or a suggestion on the roll of breaches, &c. — Clay’s Dig. 830; 1 Saund.' PL & Év. 819-20. The judgment is improperly entered, in being rendered'to the use of Mary Shea, the mother of the bastard. — Trawiek v. Da-vis, 4 Ala. 888. The bond is larger than the statute and requires duties not enjoined by it, and is therefore void. — Clay’s D. 134; 2 Mar. 68. The statute simply requires the reputed father to appear in court, and if he does so, his securities are discharged. The bill of exceptions in the original cause against the putative father, and which forms a part of the record, shows that he ■did appear. That appearance absolved his surety, and it was tie duty of the- County Court to require a new bond. The con- ■ tinuance of the- cause at his instance may have kept the bond in ■ force as to himself, but- not as to the security. Phillips,, contra:: The defendant was liable to an action on the bond, for failing to appear, .though no conviction was had against him; and if was competent, to- render the judgment for the statutory penalty, without the intervention of a jury. — Lake &-Barron v. Govern- or, 2 Stew. 895; Trawick v. Da-vis,-4 Ala. 331; Jordan v. Love-joy, 20 Kick.-86v- The bond -required by the statute continues in force until the case is disposed of,- or the sureties are discharged by an order for that purpose. — Trawick v. Davis,-4 Ala. 331; Taylor v. Hughes, > 3 Green. 433;. Blood v. Merrill,-17 Verm.-S98. The plaintiff, who-sues on a pena^bondj-may frame his declaration on the penal part, without assigning breaches. — Herndon v. Forney, 4 Ala.< .243. The continuance was within the discretion of the court, and could be 'set asidé by order for' that purpose. — Innerarity v. • Frowner, 2 Ala. 150-. The conditions of; ¡the bond not required by the statute,-do not vitiate the bond. — Pblk v. Plummer,«-2 Hiimph. 500; McCáfaher v...Commonwealth, 5- Watts & S. 21 y.Ring v. Gibbs, 26-Wend. - 502.;. Dixon, v. United States, 1 Brfock, 177-195; Sanders v. ■ Rives,.3 Stew-109 ; Whitted v. Governor, 6 Por. 335. - A bond,, though not taken in the manner prescribed by the ■ statute, may. be good as a voluntary deed. — State v. McAlpin, ■■ 4 Ired. 140;'Howard- v. -Brow-n, 8 Shep. 385; Seawell v.-Franklin, 2 Por..493. A judgment in a bastardy proceeding .will not be reversed be- - cause the judgment entry omits to state irnwhose favor-the'judgment was rendered.- — -Yarborough v- Judge- County ©hurt,-15 Ala.. 556,- There is ho-error in the' judgmentj-w-hich’ asserts that: it was: for the use of Mary Shea?.'. — State v.- Dorsey, 3 Gill &--J. 74. - And, again; there is no such error assigned; - and is-aunatter-of which defendant cannot complain.- The bond is payable to the Governor of the State,-and the • name of Fitzpatrick might be struck-out. — Governor >v Allen McMurdie,- 8 Humph.-183. [MAJORITY — CHILTON, J.] CHILTON, J. This was an action of debt, .upon the penalty of a bond executed by the plaintiff in error as surety for one Henry Hoskins, payable to Benjamin Fitzpatrick, Góvérnor' óf the State of Alabama, and his' successors in office. The writ and declaration' are-in the name of' Benjamin Fitzpatrick, describing him as Governor of this State, whereas the suit was' instituted on the 8th day of June, 1847, after Fitzpatrick had' gone out of'office. If appears by the condition''of the bond, which is set oút oiC oyer in the subsequent pleadings, that the principal obligor was’ brought before one Kemball, a justice of the peace, Charged 'with being the father’ of a bastard child,-born of one Mary Shea, 'and said justice bbing of opinion'that the offence should bé'fáf'ther inquired of, it was thereupon- stipulatéd in' 'the said condition,“that if the said Henry Hoskins'should'-make his personal ap--pearanee at the next' tCrrii of theriCounty Court to be holden for ' Mobile county, on* the 2d' Monday in - February, 1845, then and there to be dealt with as the law directs, and shall abide the order and judgment- off said-hourt arid not depart without license, and shall, in the rilé airtime, 'keep "the peace towards all persons, and especially towardf" Mary' Shea, then the bond to be' void,” &c. The record show's a'demurrer' to'the declaration, but it does not appear what disposition was iüádé of it.-- It however appears'that' the plaintiff’below filed his'démü'irers to several pleas of the defendant, 'and' according to the’settled practice, this • opened the pleading, and the demurrer'reaches'back to the declaration; ' The view we take of this'cáse renders it unnecessary that 'we should examine but the qriestion, whether the action was properly brought in the name'of 'Benjamin Fitzpatrick1?- The statute (Clay’s Dig. 184, § 2,) which requires the justice of the peace, > if sufficient cause appears, upon a preliminary examination of the female, touching the paternity of the child born or to be born ’ of her, to bind the supposed father in a bond with good' security,/* to be and appear at the next County Court to be holden for the' county, and in the meantiine to keep the peaóe, &c., does notdesignate the pferson to whom the bond'shall be made payable,nor does it "provide how it-shall be proceeded upoh • in case of forfeiture.- 'It was, however, decided at'rin early day'j that'such* bond should be made payable to the Governor, (Lake v. The Governor, 2 Stew. 395,) and we are of the opinion that the cle-. cisión in that case should be adhered to upon that point. But the question arises, how shall the parties be proceeded against upon the bond for a breach of its condition! It has been held, that official bonds payable to the Governor eo nomine, and his successors in office, are, in legal effect, oblL gations to the Governor as the chief executive officer of the State, .and may be sued and declared on without noticing the obligee’s name; and that where a suit is brought in the obligee’s name, (describing him officially,) who was superseded in office before its commencement, it will be regarded as an action by the Governor, and the name of the individual will be regarded as sur-plusage. — Bagby, Governor, use &c. v. Chandler & Chandler. 8 Ala. 230. Now we are not disposed to question the propriety of this decision, in holding -that the name of the individual suing may be regarded as surplusage, in cases where the suit is brought for the uso of a third party who has the right to put the bond in suit, to recover damages as a compensation for some official mal-versation, which has injuriously affected him ; but wo do not feel authorized, upon established legal principle or precedent, to hold that when no ono appears on the record’ as the beneficiary or usee, any one may put the bond in suit, describing himself as Governor, aiid recover, upon the ground that the Governor, and not the individual, is suing. In such cases as this, which are not brought for the use of any one, some one having by law authority to move in the matter of recovering upon the bond, must appear upon the record. We may concede that the suit may be brought, describing the plaintiff — “TheGovernor of the State .of Alabama” — or in the name of the individual who for the time being may fill the office, describing him as such Governor, and averring that he is the successor, &c. of the obligee, which would certainly he the more regular mode of conducting the action ; but where one, who, at the time tho suit was commenced was not Governor, sues for the use of no one, how can wo judicially know that the suit is not in the individual right of the party who describes himself as Governor. Ordinarily, the addition of “ Governor, &c.,” would be regarded as descriptive of the person, and the description, instead of the name of the person, might-he rejected as surplusage. .Wo are willing to adhere to the former decisions, to the extent to which they have gone, but are unwilling to extend them to cases where it does not appear that the person suing as Governor is a mere nominal party, suing for the use of some one named upon the record. Where a named individual is a party; describing himself by a wrong designation, as Governor, without suing for the use of some one else, the result must be to have no one responsible for the cost. It is not a suit by tho State, nor yet, if tiie construction contended for be the correct one, is it a suit by an individual, but a nondescript, for which neither the statute nor the common law makes provision. We conclude, therefore, that it is not competent for one to sue upon such bonds,- describing himself as Governor, when in fact ho was not, at the time tho euit was instituted, tho Governor of the State, unless the suit is brought for the use of some one, who under tho statute would be; responsible for the cost and entitled to the recovery. The declaration being defective, the demurrer should have been visited upon it. Let the judgment he reversed and-the cause remanded. "