Gayle, et al. v. Martin, et al., 3 Ala. 593

COLLIER, C. J. It is unnecessary to consider whether a1 bond, which appears-on its face to be merely gratuitous, can-be recovered by the obligee, as -the bond declared on, appears-to'be 'founded upon.a sufficient legal consideration. - The libel' against the steam-boat, in its effect, is unlike • an ordina--rv. action at-law; by the seizure- of the boat, the libellants acquired a specific.lien upon it, which'-could only be'discharged by the execution of a stipulation, such as-the statutes,-giving this extraordinary, -remedy,. prescribe. 5 Porter’s Rep. 251 Richardson, et al. v. Cleaveland & Huggins.

The interven-lion of Read, as a claimant, subseqent to the decree of condemnation, and consequent order of sale, and the simultaneous -execution of a writ of error bond- by him, had no other effect .than to arrest the proceedings until the judgment of this Court ■should.be rendered; upon the decree being affirmed, it was entirely competent for the sheriff to proceed to execute'the order of the County Court.

This being the case, we can conceive of no legal impropriety on the part of the libellants, in consenting, as it alleged they did, to relinquish their lien upon the boat, upon receiving a bond, conditioned to. pay their judgments, .should they not be reyersed by this Court; and the consideration which the obligors received for their undertaking, being the delivery of the boat, without reference, to its value, is sufficient to sustain it. There is no law which inhibits the taking of such a bond, nor is it opposed to any principle of policy, and it must consequently be good as a' common law obligation. .

It is insisted, that the action is improperly brought; that as the judgments are several, in favor of each of the obligees who recovered, so each should sue for himself, assigning.as a breach, .the non-payment of his. judgment.

In general, the action on a .contract, whether express or implied, or whether by parol or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract is vested. 1 Chitty’s Plead. 3. and cases there cited. .Under the influence of this rule, it has been held, that an action on a bond, can be maintained at common law, only by the obligee or his legal representatives. 4 Petersd. Ab. d.593, 634. And a bond given to one person for the benefit of another cannot be sued in the name of the latter. Sanford v. Sanford, 2 Day’s Rep. 559; Sanders v. Filley, 12 Pick. Rep. 554.

So it is also laid down, that all the obligees must join in the suit, and upon the death of one of them, .the survivors alone can sue thereon, even though the bond is conditioned for payment to the deceased party, and the survivors have no interest in the sum contained in the condition. Hurlstone on Bonds, 96; 9 vol. L. Lib.; see also, Moller v. Lambert, 2 Camp. Rep. 548.

It has been also said, that a release, by one of several joint obligees, will operate as a bar to all, while it has been held, that a third person, for whose benefit a bond is given, cannot even release the demand, Hurlstone on Bonds, 97. 1 Chitty’s Plead. 4, and cases cited. We have stated these principles, that it may be seen how strict the law is-in requiring', all the obligees in a bond, even, without reference to their interest, to join in the prosecution of a suit against the obligors.

Their right to join, krwholly disconnected with their right tb release the cause of action, and depends exclusively upon the question whether the legal inter- ■ esiisin them; The undertaking is to pay all the obligees, eo nomine, and this is conclusive to show to whom the obligation is given. The case of Austin and others v. Hall, 13 Johns. Rep. 286, shows, that though a plaintiff may release tb the pre»-judice of his co-plaintiffs, if the legal interest is-in him, he must-be joined in the action.

As the present case does not require us to consider the right' of one obligee, where they are several, to release the bond, or of one plaintiff, where there are more, to discharge the action, we purposely decline expressing any opinion-on these points. The declaration then, is substantially good, and the cause of action, stated with sufficient precision, although this is done in more words than need have been employed, yet its-verbosity was induced ex abundanti contela', and does not prejudice.

It is not insisted, that the demurrer to-the fourth plea, should have been overrulod, nor indeed could it be with success; the condition of the bond- not making a demand ofthe boatmecessa-ry, nor even contemplating its return. ■ From a view of the entire case, we are of opinion, that the' judgment of the Circuit Court must-be affirmed,-