
    Supreme Court of Errors and Appeals. Nashville.
    1812.
    CHRISTOPHER STUMP v. DAVID SHEPPARD.
    t >- Appeal. )
    Usage and practice have sanctioned the idea in appeals, that the principal acts as the agent of his sureties on intermediate appellate bonds (such as bonds given upon appeals from a justice to the Circuit Court), in any steps which are necessary to be taken; and, therefore, an appeal by the principal brings up the sureties, and judgment may be rendered against them, should it become necessary. [Acc. 2 Y. 368, citing this case, 862; 7 Y. 103.]
    The institution of a suit before a justice, and a trial on the merits, is not an estoppel on the party instituting it; he may show that the justice had no jurisdiction. [See Smith v. Wallace, 4 Y. 672.]
    This was an action for a malicious prosecution, commenced in the County Court of Davidson, by the appellee against the appellant.
    The declaration in the usual form, set forth that the appellant without causej -&e. commenced a suit against the appellee, in the County Court of Davidson. The declaration contained the usual averments, used in such actions.
    Upon the trial of the cause in the Circuit Court, whence the cause had been taken, the appellee for the purpose of proving malice in Stump, and the want of probable cause, introduced Daniel Young, Esq. to prove that Stump, had for the same cause of action, commenced suit before him against Sheppard, which had been tried upon its merits and decided in favor of Sheppard, before the commencement of the suit in the County Court by Stump. Young swore that the record of the suit before him was lost.
    The appellant objected to this evide’nce but the Circuit Court admitted it to be received; and further instructed the jury, that the commencement of a suit before a single justice, and having it tried upon the merits, was an admission that the County Court had not jurisdiction, — that the commencement of a suit in the County Court, under such circumstances, was evidence of malice; and that it estopped Stump from showing that the magistrate had not jurisdiction. To this opinion, Stump filed a bill of exceptions, and brought the cause into this Court.
    In the appeal from the County to the Circuit Court, Stump gave two securities, against whom in the Circuit Court, by motion, a judgment was rendered, at the same time it was rendered against Stump. The securities did not join in the appeal to this Court.
   Overton, J.

delivered the following opinion of the Court: —

A motion has been made to quash this appeal, because, where several persons are joined in an action, one alone cannot bring a writ of error. It is alleged that the act of Assembly requires the copy of the bond affording security on the appeal from the County Court, should make a part of the record sent up; and that after the appeal, and when it came to the Circuit Court, it was then a suit between Christopher Stump and two securities, on the one part, and Sheppard on the other; consequently the appeal to this Court ought to be in the name of Stump and his securities, as plaintiffs, and Sheppard defendant.

The Court consider the objections made to these proceedings as merely formal. The securities are before us, as well as the principal. On an examination of the precedents, we find this appeal is docketed and prosecuted in the manner usually observed. It is true, it appears from the record that Stump, the party to the original suit, prayed for the appeal; and that his securities are not mentioned. It might have been more regular, if the clerk, after the appeal, had carried on the proceedings in the name of principal and securities; but the precedents are agreeable to this record. Usage and practice have sanctioned the idea in appeals, that the principal acts as the agent of his securities, in the steps which are necessary to be taken. The Court, therefore, presume that when the principal obtained an appeal, it was for his securities as well as himself. The most regular way would have been for the suit to have appeared here in the name of the principal and securities ; but is sufficient as it stands. The securities appear from the record, and we can render judgment against them, should it become necessary.

Hayes and Goohe, for the appellant.

Dickinson, for the appellee.

Upon the merits, we are of opinion that the Circuit Court erred. It appears that a suit had been instituted by Stump against Sheppard, by warrant before a- single magistrate, for the same cause of action ; and that it had been determined upon the merits before the commencement of the suit in the County Court, against Stump. Evidence of this being offered and objected to, the Circuit Court decided that the institution of the suit before the justice, and the proceedings thereon, was conclusive evidence on the part of Sheppard, that the County Court had not jurisdiction; that Stump was estopped from averring the contrary, and that the commencement of the suit in the County Court, under such circumstances, was evidence of malice.

. It might have been proper to receive this evidence, but it was not conclusive.

Suppose the justice had'not jurisdiction, and it appears at least probable that he had not, it cannot be, therefore, contended that the County Court had not jurisdiction. Consent itself cannot confer jurisdiction if the law does not.. And the strongest inference that can be drawn from the proceedings before the justice can amount to no more than consent, if that.

The judgment must therefore be reversed, and the cause remanded to the Circuit Court for a new trial to be had therein; upon which, if this testimony should be again offered, it may be submitted to the jury, to have such weight with them as, under all circumstances, it deserves; but it shall not be conclusive.  