Opinion
December Term, 1850.
1. A bond given by a person arrested on a ca. sa. for his appearance at court is required by our law to be made payable to the plaintiff in the execution; a bond otherwise payable, for that reason alone, will prevent the court from entering a summary judgment.
2. Where a person arrested on a ca. sa. gives a bond payable to A. B., who makes the affidavit for the ca. sa. and styles himself the agent of C. D., the plaintiff, no action can be maintained on such bond in the name of C. D., for he is not the obligee.
APPEAL from the Superior Court of Law of BLADEN, at Fall Term, 1850, Battle, J., presiding.
Troy for plaintiffs.
Strange, McDugald and D. Reid for defendants.
Alexander McD. Williams obtained a judgment against Joshua Bryan in Bladen County Court for $11.91 debt and $66.89 costs; and sued out a ca. sa. thereon, upon (614) which Bryan was arrested by the sheriff. The affidavit on which the ca. sa. was issued was made by William H. White, who states therein that he is the agent of the plaintiff in that suit; and the sheriff took a bond from Bryan and two others as his sureties for his appearance, in the sum of $155.60, payable "to William H. White, agent for Alexander McD. Williams."
The execution and bond were returned to the next term. But Bryan did not appear, and thereupon a motion was made against the obligors in the bond. But the court refused it and ordered the bond to be delivered up, and thereupon White appealed. In the Superior Court a motion was again made on behalf of Alexander McD. Williams for judgment on the bond, which was resisted on the part of both Bryan and his sureties. But the court was of opinion that, inasmuch as Bryan did not appear in the County Court, the suit was undefended, and therefore gave judgment in favor Alexander McD. Williams for the penalty of the bond, to be discharged by the payment of the debt and costs. The defendants appealed.
The judgment cannot be supported. The act of Assembly directs the bond to be made payable to the plaintiff in the execution, and for that reason, if no other, there could not be a summary judgment on this bond. But if that were otherwise, clearly Williams cannot have a judgment in his name on a bond payable to White, though White be therein stated to be his agent, for only an obligee can maintain an action on the obligation. It is true, the debtor cannot, after failing to appear, adduce any matter of fact by way of defense. But (615) that is not material to the present question, which is, whether the party who moves for the judgment shows a case on which he is entitled to judgment against the defaulting debtor. The case may be likened to a default in an action of debt, in which the declaration states a bond to A, without deriving any title from A to the plaintiff; upon which, certainly, it would be erroneous to give judgment against the defendant, though in default. Here the creditor's own case — the bond, upon its face — showed that Williams could not have judgment on it in any form of proceeding, whether by action or motion. The default admits the whole case stated in the declaration in the one case, or in the bond in the other. But it admits no more, and does not authorize a judgment was therefore erroneous, and must be reversed, and that of the County Court allowed to stand. The County Court ought not, perhaps, to have canceled the bond. But if that were erroneous, it did not concern the present appellant, as he had no interest in the bond, in a legal sense, and had no right to appeal.
PER CURIAM. Judgment reversed.
Cited: Robinson v. McDougald, 34 N.C. 137; Earle v. Dobson, 46 N.C. 517; Cohoon v. Morton, 49 N.C. 258.
(616)