Herndon v. Forney
Supreme Court of Alabama
, Wkit of Error to the Circuit Court of St. Clair county. Action of debt on bond. The declaration consists of a single count for the penalty.
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, Wkit of Error to the Circuit Court of St. Clair county. Action of debt on bond. The declaration consists of a single count for the penalty. The defendant craved oyer of the bond and its condition, which being given, it appears to be an attachment bond with the condition to be void if the plaintiff in the attachment should prosecute his suit to effect and pay and satisfy the defendant all such costs and damages as he might sustain by the wrongful or vexatious suing out of the attachment. The defendants then demurred to the declaration, and the Court sustained the demurrer. The plaintiff…
1Opinion of the CourtGoldthwaite, J.
1. The demurrer in this case was prematurely taken, because when the condition of the bond was set out on oyer, it showed a strict conformity with the statute, therefore the declaration for the penalty was proper, unless it was incumbent on the plaintiff in the-first instance, to show some specific breach of the condition.
This is believed to be unnecessary, as the most approved authorities state the rule to be, that it is the privilege of the plaintiff, either to suggest breaches on the roll, or to declare for the penalty, and assign them in his replication to the plea of performance. [1…
2Cases cited3 opinions
- Alford v. JohnsonSupreme Court of Alabama · 1839
- Davis v. DicksonSupreme Court of Alabama · 1830
- Lowe v. DerrickSupreme Court of Alabama · 1839
3Cited by9 opinions
- Donnell v. JonesSupreme Court of Alabama · 1848
- McCullough v. WaltonSupreme Court of Alabama · 1847
- McKellar v. CouchSupreme Court of Alabama · 1859
- Tompkins v. TolandTexas Supreme Court · 1877
- Tyson v. SandersonSupreme Court of Alabama · 1871
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