Matthew Clanton vs. Henry Laird et al., Trustees of the Town of Belmont.
It is an immaterial variance between an affidavit to procure an attachment, by trustees of a town, and the writ of attachment, that the indebtedness is described in the affidavit to be to A and B and C and D, trustees, &c; and in the writ to A and B and C, surviving trustees, &c.
One of the trustees of a town, who had sued an attachment against an absconding debtor, executed the attachment bond in his individual name, purporting to bind himself personally, but conditioned for the prosecution of *569the attachment by the trustees; held, to be sufficient to sustain the attachment.
To a suit on a bond, by trustees of a town, the defendant plead non est factum under oath ; the plaintiffs proved his signature, and read the bond without objection to the jury; held, that thereby, even if without a plea, denying plaintiffs’ character, as trustees, it were necessary to prove it; the defendant had admitted it, by allowing the bond to go to the jury without further objection.
In error from the circuit court of Panola county; Hon. Hugh R. Miller, judge.
Henry Laird, described as one of the trustees of the town of Belmont, on the 14th of April, 1846, made oath that Matthew Clanton was justly indebted “to him, Samuel McCorkle, John Chisholm, and Peter F. Armistead, as trustees of the town of Belmont, in,” &c. He gave bond in his own name, with surety, reciting in the condition that he and McCorkle, Chisholm, and Armistead, had sued out the attachment as surviving trustees of the town of Belmont, and condition that they should prosecute the suit.
The writ of attachment recited that Clanton was indebted to Laird, McCorkle and Chisholm, as surviving trustees, and was dated on the same day with the bond and affidavit.
The defendants moved to quash the attachment, 1. For want of sufficient bond; 2. Because of a variance between the writ and affidavit. The motion was overruled.
Henry Laird, Samuel McCorkle, John Chisholm, and Peter F. Armistead, the plaintiffs, then filed their declaration on two bills single of the same amount; one of which was as follows, viz.
“ $73-30. Twelve months after date I promise to pay the trustees of the town of Belmont seventy-three dollars and fifty cents, for block No. 4 in said town, value received. Witness my hand and seal this 6th day of April, 1839. Matthew Clanton, [seal.] ” The plaintiffs alleged themselves to be trustees of the town. The defendant plead non est factum, verified by his oath.
On the trial the plaintiffs proved the signature of Clanton to the bills, and read them to the jury. This was all the evidence.
The defendant asked the court to instruct the jury, that under the pleadings the plaintiffs must prove that they were the trus- ' *570tees of the town. This was refused. The jury found for plaintiffs. The defendant moved for a new tidal, and on its refusal sued out this writ of error.
William Gr. Thompson, for plaintiff in error.
E. ¡8. Fisher, for defendants in error.
Mr. Justice ThacheR
delivered the opinion of the court.
This is an action upon two bills single, instituted by virtue of a writ of attachment by the trustees of the town of Belmont against Clanton.
A motion to quash the attachment was overruled by the circuit court. The grounds of this motion were a variance between the writ and the affidavit, and the insufficiency of the bond.
The affidavit was of indebtedness to Laird, McCorkle, Chisholm, and Armistead, as trustees of the town of Belmont, while the indebtedness is ascribed in the writ to Laird, McCorkle, and Chisholm, as surviving trustees of the town of Belmont. The indebtedness both in the affidavit and writ is laid to the trustees of the town of Belmont, as they were at the date of each. Between the time of making the affidavit and that of the issuance of the writ, one of the trustees may have died, and, at all events, the variance is immaterial.
The bond was executed by Laird as an individual, and was conditioned that the town of Belmont should prosecute their suit against Clanton with effect. In suits by trustees of a town, and by plaintiffs in similar capacities, some one, from necessity, must act as agent for the rest, and this agency is always apparent, and will be recognized from the face of his proceedings; and hence, where such an agent in an attachment gives a bond in. his own name with surety, binding himself individually, and not purporting to bind the principal in the prosecution, it is a good bond under the statute, and will uphold the attachment. Frost v. Cook, 7 How. 357; Page v. Ford, 2 S. & M. 266; Ford v. Hurd, 4 Ib. 683.
The defendant pleaded non est factum to the action, verified by affidavit. In this state of the pleadings, the plaintiff, upon *571the trial, proved the signature of Clanton to the instruments, and thereupon read them to the jury without objection. The bills single were payable to the trustees of the town of Belmont. Afterwards the circuit court was requested by the defendant, but declined-to charge the jury, that, under the pleadings in the case, it devolved upon the plaintiffs to prove that they were the trustees of the town of Belmont, at the time of the execution of the bonds sued on, and that without such proof they must find for the defendant.
The court properly refused this instruction, if not upon the ground of the absence of any plea attacking the character of the parties plaintiff, certainly for the reason that the defendant allowed the bills to go to the jury without further objection, as we held at this term in the case of Foote's Ex'rs v. Alliston. [Ante, 124.]
Judgment affirmed.