Opinion
(June Term, 1848.)
1. Where a writ is brought in the name of A. B. Co., and it is afterwards amended so as to substitute in place of A. B. Co. the names of A. B., C. D., and E. F., composing the firm of A. B. Co., it seems this will operate as a discharge of the bail.
2. Where a scire facias against bail does not set forth how the defendant became bound as bail, nor recite the cause of action, nor the court in which the judgment against the principal was obtained, it is fatally defective.
APPEAL from the Superior Court of Law of ANSON, at Fall Term, 1846, Settle, J., presiding.
Winston for plaintiffs.
No counsel appeared in this Court for defendant.
This was a scire facias against the defendant as the bail of one Laurence Moore. It commenced in the County Court, and recited that "Whereas it appears that at April Term, 1845, a judgment was obtained by John Smith, Joseph P. Smith and William G. Smith, trading and acting under the name and style of John Smith Co., against Laurence Moore for the sum of $93.44 principal money and $24 interest, also $10.75 for costs that accrued therein, and that Malcolm Shaw was bound as bail for the appearance of Laurence Moore, and the said judgment being in full force, not satisfied, you are hereby commanded to make known to Malcolm Shaw his liability in the premises, that he may appear, etc." The defendant appeared and pleaded nul tiel record, a release and discharge of bail; and upon his motion the scire facias was quashed, whereupon the plaintiff appealed to the Superior Court. And in that court the plaintiffs were permitted to demur to the plea of discharge of (234) bail, "for the reason that the plea did not state in what manner the bail was discharged — whether by death, surrender of principal, or otherwise." Afterwards, the cause coming on to be tried at Fall Term, 1846, of the Superior Court of Law for Anson County, it appeared in evidence that John Smith Co. sued out their writ against Laurence Moore, returnable to January Term, 1845, of Anson County Court. The writ was issued in the name of "John Smith Co." and commanded the arrest of Moore to answer them of a plea of trespass on the case, and under it he was arrested and gave the defendant Malcolm Shaw as bail. At the ensuing April Term of the said court the plaintiffs obtained leave to amend, and did amend, this writ so as to make it run in the names of John Smith, Joseph P. Smith and William G. Smith, trading and acting under the name and style of John Smith Co., and in that name they obtained a judgment against the said Moore. Under the charge of the court the jury found that there was no release, and the court adjudged that there was such a record that the demurrer to the plea of discharge of bail be sustained; and a judgment was given against the defendant according to the scire facias, from which he appealed to the Supreme Court.
The scire facias and the pleadings thereupon in this case are so imperfect and defective that the question relative to the discharge of the bail by reason of the amendment of the plaintiffs' writ, which was intended to be presented in the court below and which has been mainly discussed in the argument here, cannot arise. There is no allegation in the scire facias of the bond by which the defendant, Shaw, became bound as the bail of Moore. It was merely recited that (235) he "was bound as the bail for the appearance of Laurence Moore," without stating that it was by bond, or that it was according to the provisions of the act of the General Assembly "concerning bail in civil cases." The defendant, then, had no opportunity of putting in any plea by which the question of his discharge, on account of the alteration of the writ, could be presented. Had such an opportunity been offered him his proper plea would have been that of non est factum, for, upon the trial of the issue arising upon that plea, the question could have been distinctly presented whether a bail bond given in a suit brought in the name of John Smith Co. could sustain a declaration upon the scire facias reciting a 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., And this, we think, must have been decided against the plaintiffs. Bryan v. Bradley, 1 N.C. 177; Levett v. Kibblewhite, 6 Taun., 483 (1 Eng. C. L., 459); Tidd Practice, 294, 450; Petersdorff on Bail, 417. But as the point does not arise, we do not decide the case upon it.
Upon an inspection of the record brought before us by the appeal of the defendant it appears that judgment was rendered against him according to the scire facias for $117.44, of which sum $73.44 is principal money. That judgment cannot be sustained. The scire facias (and, of course, the declaration, which must conform to it) is fatally defective, both in form and substance. Besides not setting forth how the defendant became bound as the bail of Moore, it does not recite the cause of action, nor even the court in which the judgment against the said Moore was obtained. These are certainly essential statements, and for the want of them the judgment must be arrested. The judgment rendered against the defendant in the Superior Court is therefore reversed, and judgment in this Court (236) is arrested.
PER CURIAM. Judgment arrested.
Cited: Malpass v. Fennell, 48 N.C. 82; Cohoon v. Morton, 49 N.C. 258.