Opinion. — A judgment was rendered in the court below against the plaintiffs in error, Joseph Laing, F.O. Brown and C. Vanordstrand, as sureties on a replevy bond. The bond was signed thus: "Brown and Laing by J. Laing, N.J. McLeod, C. Vanordstrand." It showed on its face that N.J. McLeod was a principal and the other signers sureties. There is no pleading in the record showing that F.O. Brown and Joseph Laing composed a firm called Brown Laing, and that by such firm signature to the bond they became individually liable thereon; and this being the case, there is no basis in the record for the judgment against them; and for this reason, and this alone, we reverse the judgment, and remand the cause. It may be that if the names F.O. Brown and Joseph Laing had been signed to the bond, that fact, without any averments in reference thereto, would have made them parties to the suit and entitled Mrs. Craig to judgment against them on the bond. But as their names were not so signed nor stated in the bond, the court could not assume, nor, in the absence of pleading alleging the fact, hear evidence to show, that F.O. Brown and Joseph Laing composed a firm called Brown Laing. Hence, if we assume (there being no statement of facts) that the existence of such a partnership was shown by proof, such assumption will not sustain the judgment. It being necessary to plead the existence of the partnership, proof of it, without such a plea, would not support the judgment.
Reversed and remanded. *Page 136