Crawford v. Alexander

On the merits:

Land, J.

This suit was commenced in July, 1851, by the wife of J. B. Crawford, against the defendant, in her individual capacity, for the recovery of certain slaves claimed by the plaintiff, Catherine Crawford, in her own separate right. Afterwards, in December, 1851, the defendant, M. B. C. Alexander, as administratrix of the successions of James H. Cain and of John R. Cain, instituted a suit of attachment against J. B. Crawford, plaintiff’s husband, on certain promissory notes made by him, and caused the-slaves claimed by plaintiff, to be seized as the husband’s property.

These suits were consolidated and tried together, and judgment rendered against defendant, Mrs. Alexander, in both cases. She has appealed, and the plaintiff moves to dismiss the appeal on the grounds, among others, that she, as plaintiff in the petitory action against Mrs. Alexander, in her personal capacity, can have no right of action on the appeal bond, for the reason that the bond is given by defendant exclusively in her representative capacity, and is only applicable to the attachment suit in which her husband was sued by defendant, as the administra-trix of the successions of J. H. and J. R. Cain.

Can the plaintiff sue on this bond ? She has no judgment against the successions of Cain, nor was she a party to the suit in which the judgment on the notes was rendered against the successions. There is no priority of judgment between plaintiff and defendant as the administratrix of these successicms, and there cannot be, therefore, any priority of contract created by the appeal bond signed by her as administratrix, and consequently no right of action in favor of plaintiff. If the plaintiff has a right of action on the appeal bond, the consequence of a judgment on it against defendant, as administratrix, would be to make the successions of Cain liable for the individual obligations of defendant, when the plaintiff had no claim, nor pretended to have any against them.

It cannot be said that the addition “ administratrix” to her name, is a mere description of the person, and is, therefore, surplusage, for the reason that there is a judgment in this case against the successions of Cain, in the attachment suit consolidated with this action, from which the defendant, as administratrix, has appealed.

The bond is made payable to J. B. Crawford, the defendant in the attachment suit, and to plaintiff in this the petitory action.

*710it has already been decided, that the error or omission in the bond cannot be cured.

It is, therefore, ordered, adjudged and decreed, that the motion be sustained, and the appeal dismissed, at costs of appellant.