In re the Appeal of Cahill

Campbell, J. The only question which needs considerar rtion in this case is whether a surety on a replevin bond can be held liable where in the body of the bond a principal’s name appears, and he does not sign it. This case was put to the jury under instructions which ■practically held that the presumptions were against such a liability, but that if the surety delivered the bond with the intention that it should take effect without the principal’s •signature, and did not intend that such signature should be .necessary to fix his own liability, then the bond should be effective and binding. We think this was correct. There is no foundation suggested for- any other rule unless on the theory that the plaintiff must always sign in person or by agent as principal in a replevin bond. This, in case of absence or for many •other easily-suggested reasons, might defeat his remedy altogether. The statute allows the bond to be signed by ■“ some one in his behalf.” § 6735. This cannot mean an ■agent only, for then it would be the plaintiff’s own bond, for the agent is his representative and the agent’s act is his act. It cannot make any difference to the defendant what person rsigns the bond, if- it is only signed by responsible parties. We [618] think that a bond signed by none bnt sureties is sufficients Unless (which is not claimed) the bond would in all cases be-void when some obligor named fails to sign it, the liability exists in this case. The judgment must be affirmed with costs. The other Justices concurred.