Commissioners v. Bank of Commerce

ERROR to the Circuit Court of the United States for the District of South Carolina.

This was an action brought by the Bank of Commerce to recover the amount of sundry coupons which were formerly attached to bonds, purporting to be issued by the Board of County Commissioners of the County of Pickens, South Carolina, in aid of the Atlanta and Richmond Air-Line Railway Company. The complaint alleges that the said coupons are for different sums of money, depending on the size of the bonds, and are in the form following, to wit:--

'$7.00. The County of Pickens, State of South Carolina, will pay the bearer on the first day of January, 1874, seven dollars, at Pickens Court-house, for annual interest on bond No. 113.

'H. J. ANTHONY,

'Chairman of Board of County Commissioners.

'Receivable in payment of taxes.'

-and that the plaintiff is the bona fide holder of them for value, and that they, though due, have not been paid.

Judgment was rendered in favor of the bank. Several defences, interposed below, were abandoned here. The remaining facts and the assignment of error are mentioned in the opinion of the court.

Mr. William W. Boyce for the plaintiff in error.

The 'county of Pickens' not having been sued by its corporate name, no judgment on its contracts can be rendered against it in this suit. A corporation (unless empowered to sue and be sued in the name of its clerk or trustee) should sue and be sued by the name in which it is incorporated. Brown, Actions at Law, 115; 1 Saunders, Plead. and Evid. 387. The statutes of the State do not authorize a suit for the enforcement of a county liability to be brought against the persons who constitute the board of commissioners; and the present judgment against them as individuals must be reversed, because there is nothing on the record showing their personal liability. The plaintiff below must therefore fail, as against the county, because he has not sued it; he must fail against the defendants, because he asserts a claim for the payment of which they are not individually bound. The words 'county commissioners' added to their names are a descriptio personarum, and do not define or limit their liability.

The objection is not for misnomer, nor is it one of form. It is for a defect in matter of substance, apparent on the pleadings, for which error lies.

Mr. James Lowndes and Mr. W. E. Earle, contra.

MR. JUSTICE HUNT delivered the opinion of the court.