#### Shelton v. Pollock & Co.

Thursday, October 8, 1807.

Debt- Bond Signed by Partners — Declaration— Aver-ments.*- -In an action of debt, the declaration being againstA. and B. merchants and partners, and charging that A. for himself, and B. by his certain bill penal bound himself and his heirs, &c. (the bil) penal being in that form), without containing any farther averments, was adjudged to be insufficient in law to maintain the action.

Appearance Bail — Failure of Sheriff to Return Bail-Bond— Judgment.† — If the sheriff returns a writ executed, and the name of the appearance bail, but does not return the bail-bond, or a copy thereof, to the clerk’s oifice, together with the writ, judgment ought not to be entered against the defendant and bail, but against the defendant and the sheriff.

Office Judgment — Record—Bail-Bond‡—It seems that, when ajudginect is entered in the cleric's oifice. against the defendant and bail, a copy of the bail-bond ought to be inserted in the record.

Pleading — Defective Declaration — Bffect.—rf the declaration be substantially defective, the judgment must be reversed in toto.

*

Debt — Partnership Bond — Declaration—Averments, —See monographic *note*on “Debt, The Action of” appended to Davis y. Mead, 13 Graft. 118; mono-graphic *note*on “Partnership” appended to Scott v. Trent, 1 wash. 77.

†

Appearance Bail — Failure of Sheriff to Return Bail-Bond —Judgment. — See principal case cited with, approval in Harrison v. Tiernans, *4*Rand. 170, 180.

‡

Office Judgment — Record.—The judgment was by default, for want of appearance, and consequently the writ and bail-bond are parts of the record. Ming v. Gwatkin, 6 Rand. 551, citing principal case and Quarles v. Buford, 3 Munf. 487.

Robert Pollock & Co. brought an action of debt in the District Court of Charlottes-ville against William Walker and Clifton Garland, late merchants and partners, under the firm of Walker & Garland, on a bill penal, in the following words: “On demand I promise to pay Robert Pollock & Co. two hundred and ten pounds, seventeen shillings and seven-pence, Virginia currency, for the true payment whereof I bind myself, mj' heirs, executors and assigns in the penal sum of four hundred and twenty-one pounds, fifteen shillings and two-pence, like money. Witness my hand and seal this second day of September, 1802.

William Walker, (Seal.)

for

Walker & Garland.”

Attest, James P. Garland.

*The writ was returned by the sheriff with this indorsement, “Executed, and Samuel Shelton bail;” but the clerk certified at the foot of the record that no bail-bond was returned with the writ.

The declaration was against William Walker and Clifton Garland, late merchants and partners, under the firm of Walker *&*Garland; and charged that William Walker for Walker & Garland bound himself, &c. (according to the terms of the bill penal), and that neither the said Walker & Garland, nor either of them, had paid, &c.

At rules in the clerk’s office in April 1804, the suit abated as to the defendant Walker by his death: and the record proceeds to state that, ‘ ‘the sheriff having returned that he had duly executed the writ” a common order was entered against the defendant Garland, and Samuel Shelton the bail, for his appearance, which was confirmed at the rules in May following, and a final judgment entered.

Samuel Shelton, the’ appearance bail, obtained a supersedeas to this judgment, from one of the Judges of this Court; — alleging, in his petition, “that he never was bail in the suit; that he never entered into a bail-bond; nor ever, in the most distant manner, authorised the sheriff to consider him as bail.” — ■

Nicholas, for the plaintiff in error, contended, 1. That the bill penal appearing *192on the record to have been signed by William Walker “for Walker & Garland,” and not by both the partners, they could not both be bound; and cited 7 Gwyllim’s1 edition of Bacon’s Abridgment, (title Merchants and Merchandize,) to shew that one partner cannot bind another by signing a bond, (a) He observed that this case presented the doctrine in a very strong point of view; for the suit had abated as to Walker, (who signed the obligation,) and judgment had been obtained against Garland, (who had never signed it,) and his bail.

2. Judgment was not properly entered against Shelton as bail, no bail-bond, nor copy thereof, having been returned.

The Haws of Virginia (Rev. Code, 1 vol., p. 78, c. 66, sect. 26), require a copy of the bail-bond to be returned by the sheriff, together with the writ. — -The motive of the Legislature was to guard against fraud; — • that a record of the bail’s responsibility should be filed: — otherwise the sheriff might, by collusion with the plaintiff, make a man bail who was not. In this case, a man who was ignorant that he had ever been considered as bail, has had a judgment entered against him.

*Where an office judgment is rendered, the bail-bond is an essential part of the record, and ought to be inserted by the clerk. This judgment is, therefore, erroneous, because it does not legally appear that Shelton ever was bail.

It may be said, that this objection is de-hors the record; but surely it is not. — -When we apply for a supersedeas, we have a right to insist on the production of every thing upon which the clerk founded his judgment.

The Judges of the District Court could not have corrected the error; it being too late, after the judgment entered in the office had been confirmed, and a term had elapsed ;(b) the District Court having power to correct such proceedings in the clerk’s office as took place during the preceding vacation only. (c) Relief must, therefore, be obtained from this Court alone.

Call, for the defendant in error. The first objection is, that one partner cannot make himself liable for another. But, in this country, the course of trade is very different. The custom here is, that the planter sells his tobacco to the merchant; the merchant is his banker; and the mercantile company is responsible. The planter wishes a bond from the company. Where only one of the company resides here, and the rest on the other side of the Atlantic, one only can sign the bond. The course of trade, therefore, is, that one partner may bind the rest. If the law of England was positive against it, the law would be different here, for the case of Rose v. Murchie, (d) proves that the course of trade alters the rules of law.

I do not say that one partner can, for land bought by him, bind the rest. Why? —Because such a purchase is not in the course of trade. But, if he buys a hogshead of tobacco, the case is otherwise. If a partner gives a bond not in the course of trade, the other partners may object to it j but he who makes the objection must support it.

The second question is concerning the responsibility of Shelton as bail.

On this point it is to be observed, that the return of the bail-bond is not the foundation of the judgment. His responsibility accrued from his becoming bail, and the sheriff’s return that he was so; and his signing the bond was sufficient, whether the sheriff returned it or not. The sheriff’s returning a copy is not for the benefit of the bail, but of the plaintiff, that he may inspect it, and see whether the bond was legally taken, so as to bind the bail. The plaintiff has his choice, either to proceed against the bail *without the copy, or against the sheriff for failing to return it.

Take the record, without the clerk’s certificate, and all is regular. If, therefore, the certificate contradicts the record, it is not admissible; for Shelton has not a right to aver any thing contrary to it, and the clerk cannot be permitted by his certificate to impeach his own record.

But, the certificate is that “no bail-bond was returned;” not that no copy of the bail-bond was returned. A copy, therefore, might have been returned; and every inference in favour of a judgment is to be made by the Court of Error.

If, however, Shelton is an injured man, he must look to the sheriff for redress, and sue him for his false return; but, I suppose, the fact is, that the sheriff, at this moment, has the bond in his pocket.

Nicholas, in reply.

Mr. Call contends, that the course of trade will controul the principles of law ; but the case of Rose v. Murchie does not go that length. Chitty, on Bills of Exchange, shews that, in England, the usage of merchants could not put promissory notes on the same footing with inland bills of exchange, until the statute of Anne was passed.

I doubt, however, whether there has been any such course of trade. The planters have been generally indebted to the British merchants; not e contra. But the reason as to foreign merchants does not apply in this case; for both the obligors resided in the County of Albemarle.

The bond was only a personal undertaking by Walker, for Walker and Garland; not a bond of Walker and Garland. Neither the bond nor the declaration states them to have bound themselves by means of Walker one of the partners: but he binds himself to pay. The burthen of proof lies on the plaintiff to shew that the bond was given in consequence of a partnership transaction, and in the course of trade; it being, prima facie, a personal undertaking.

As to the 2d point. This record ought not to be considered as in ordinary cases. The proceedings having not been in Court, but altogether in the clerk’s office, all the documents which he acted upon ought to have been inserted in the record.

I do not say the return of the copy of the bail-bond binds the bail; but I say, his giving the bond binds him, and the clerk has no evidence, but the copy’s being *193returned *which can justify him in saying there is an original.

If the sheriff does not return a copy of the bail-bond, he is to be considered as the bail himself, and majr defend the suit, (a) The judgment was, of course, erroneous, becattse the clerk ought to have entered it against the defendant and sheriff; not against the defendant and bail; and such is the constant practice in such cases.

Wednesday, Oct. 14. The President delivered the opinion of the Court consisting of all the Judges, “that there was error in this; that the declaration was not sufficient in law to maintain the action against Walker and Garland jointly, on a bond, as stated in the declaration, in the singular number and binding on Walker only ;(1) and also in this; that the sheriff not having returned the bail-bond g-iven by the appellant (if any bond was by him given) for the appearance of Clifton Garland, or a copy thereof, to the clerk’s office before the day for the appearance of the said Garland in the said office to the suit of Pollock *&*Co. according to law, judgment ought not to have been entered against the appellant as bail for the appearance of the said Garland, but against the sheriff for not returning the bail-bond, or a copy thereof, according to law.”

A question was raised By Mr. Call whether the suit should not be sent back for farther proceedings. He contended that by amending the declaration and averring that the bond was given by Walker for himself and Garland, with Garland’s consent, the plaintiff might recover. The Court gave no opinion on this point; but observed that, where the declaration was defective, it was the constant practice of this Court to reverse the judgment altogether, and not to direct a repleader, (b)

The judgment was therefore reversed in toto.

(a)

 See Harrison v. Jackson, 7 Term Rep. 207.

(b)

Cb) Halley v. Baird, &c. ante, p. 25.

(c)

 Rev. Code, 1 vol., p. 78, c. 66, s. 28.

(d)

2 Call, 409.

(a)

 Rev. Code, p. 78, c. 60, s. 27.

(1)

 See the distinction between those cases in which one partner may bind the firm, and in which he cannot, in Day's edit, of lisp. Rep. vol. 2. p. 527, note (1) to Arden v. Sharpe etal. and the cases there cited. See also, 3 Johnson’s (New-York) Rep. 218, Tom v. Goodrich and others. — Note in Original Edition.

(b)

1 Wash. 135, Smith v. Walker.

•See monographic *note*on “Attorney and Client" appended to Johnson v. Gibbons, 37 Gratt. 632.