Opinion
June Term, 1857.
There is no necessity that an appellant should himself sign, or otherwise execute, the appeal bond.
Where a judgment and a ca. sa. upon it were taken in the name and behalf of "A and B," a firm, and a ca. sa. bond taken, made payable to the same firm, upon the defendant's default, it was held, that no judgment could be rendered on such bond in the name of certain individuals claiming to be the persons meant by "A and B," nor in any other manner; for, "A and B," not being a corporation, cannot be recognised in legal proceedings.
THIS was a motion for judgment on a ca. sa. bond, heard before his Honor, Judge BAILEY, at a special Term, 1854, of Pasquotank Superior Court.
The judgment upon which the ca. sa. issued, was in favor of Cohoon McIntosh for sixty dollars, rendered by a justice of the peace. The ca. sa. issuing thereon pursued the judgment, which was in the name of Cohoon McIntosh, as plaintiffs. The bond given for the defendant's appearance, under the ca. sa., was payable to Cohoon McIntosh, and recited the ca. sa. simply as it was, without any explanation of the name and style of the obligees. At the term of the county Court, to which the defendant was bound to appear, the defendant moved to quash the ca. sa., and dismiss the proceedings; which motions were sustained by the Court; from which judgment the plaintiffs appealed, and gave bond for the appeal, with sufficient sureties. The appeal bond was signed by the plaintiffs, as "Cohoon McIntosh."
In the Superior Court, the defendant moved to dismiss the appeal, upon the ground that the signature by the plaintiffs was a nullity; which motion was refused.
The plaintiffs then were allowed to call the principal obligor in the ca. sa. bond, who made default; whereupon the plaintiffs moved for judgment, in the names of P. A. R. C. Cohoon and R.H. McIntosh, which was allowed, and judgment entered accordingly; from which the defendant appealed to this Court.
Smith and Martin, for plaintiffs.
Pool and Jordan, for defendants.
The motion made by the defendants in the Superior Court, to dismiss the appeal, was properly over-ruled. It was not necessary that the appeal bond should have been signed by the plaintiffs at all, and of course it did not invalidate the bond, as to the other obligors, that they signed as "Cohoon McIntosh." In the case of Woollard v. Woollard, 8 Ire. Rep. 322, it was held by the Court, that where the appellant in a suit failed to prosecute it with effect, the appellee might "take a judgment against the principal, upon his liability as a party to the suit, and then another and separate judgment against the sureties on the bond; or he might take a joint judgment against the principal and his sureties on the bond. We are unable to perceive any advantage which the appellee could have by taking a joint judgment; and we are therefore of opinion that an appeal bond executed by the sureties only, would be sufficient to sustain the appeal.
The motion of the plaintiffs for a judgment against the defendants, Morton and his sureties, on his appearance bond, ought likewise to have been over-ruled. This bond was taken, payable to "Cohoon McIntosh," and the motion for judgment was made in behalf of P. A. R. C. Cohoon and R.H. McIntosh, partners in trade, trading under the firm and style of Cohoon McIntosh, and the judgment was given accordingly. This was, we think, erroneous. In the care of Smith v. Shaw, 8 Ire Rep. 233, the Court intimate the opinion that a declaration upon a sci. fa., reciting a bail bond executed in a suit brought and prosecuted to judgment, by John Smith, Joseph P. Smith, and William G. Smith, trading and acting under the name and style of John Smith Co., would not be sustained by proof of a bail bond given in a suit brought in the name of Smith Co. If this be so, and we think it is, then the cases of Williams v. Bryan, 11 Ire. Rep. 613, and Earle v. Dobson, 1 Jones' Rep. 515, are directly in point to show that P. A. R. C. Cohoon and R.H. McIntosh, partners in trade, and trading under the firmed and style of Cohoon McIntosh, could not have a judgment upon a bond payable simply to "Cohoon McIntosh." These persons are not a Corporation, and are not to be recognized in legal proceedings, unless it is stated who they are, and how they claim to be acting under a particular name and style. The judgment is erroneous, and must be reversed.
PER CURIAM. Judgment reversed.