Fullerton v. Campbell

The opinion of the Court was delivered by Lewis, C. J. When Fullerton became the bail for Milligan’s appeal, Hugh Campbell alone was the plaintiff. The result shows that he ought to have joined in the action the names of Philip Templeton and A. Colwell, and that the award in favour of Campbell alone was unjust, or at least illegal. The omission to join the proper parties may have deprived the defendant of a fair hearing in questions of payments to the parties not named, or set-offs against the real plaintiffs, and may also have deprived the defendant of the security to which he was entitled in case of a judgment in his favour. These considerations may have influenced Fullerton in becoming security for the appeal. He became bail on an appeal against the unjust claim of Hugh Campbell. His engagement is not to be extended to liabilities for his principal in a suit brought by Hugh Campbell, Philip Templeton, and A. Col-well. The Court had. the power to permit the amendment, if it appeared to them that a, mistake or omissjon had been made. But -the mistake in this ease was that of the plaintiffs, and they have no right to visit the consequences of it upon the bail, who, for all that appears, never would have become bound as bail on appeal if the recovery before the arbitrators had been in favour of the proper parties. The judgment should have been for the defendant on the plea of nul tiel record.. Judgment reversed and judgment for the plaintiffs in error on the plea of nul tiel record, with costs.