Justices of Chowan ex rel. Spencer v. Bonner, 14 N.C. 289, 3 Dev. 289 (1831)

Dec. 1831 · Supreme Court of North Carolina

14 N.C. 289, 3 Dev. 289

The Justices of Chowan, upon the relation of John Spencer et ux. v. Johh Bonner.

Á bond payable to the justices of a> county, executed by several persons, one of whom is a justice of that county, is void as to all the ob-ligors.

This was an action of debt, tried-on the last circuit, before MartiN, Judge.

Upon oyer the bond was set forth in hcec verba:— “ Know all men, that we, Henry Holmes, John Bonner il and Baker Hoskins are held and firmly bound unto “ Exirn Simpson, Esquire, and the rest of the justices “ assigned to keep the peace of the county of Chowan, “ in the full sum of &c. to which payment well and truly “ to be made, we bind ourselves, our heirs, executors “ and administrators, jointly and severally by these “ presents. Sealed, &c.”

The condition was, that the obligor, Holmes, should improve the estate of the wife of the relator as her guardian, and should pay it over at her full age.

Several pleas were entered for the defendant, but the cause being decided upon that of non est factum, it is not necessary to state them or the breaches assigned by the plaintiffs. The original plaintiffs were those justices of Chowan, who were the survivors of the obligees at the date of the writ, and among them was Baker Hoskins, one of the obligors. On the trial it was proved that Holmes and Hoskins, two of the obligors were justices at the execution of the bond, upon which his Honor nonsuited the plaintiffs, who appealed.

Iredell, for the plaintiff,

contended, 1st, that a bond might be void as to one of the obligors, and yet good as to the others ; that where the bond was joint and several, it had the same effect as if each obligor had executed a separate bond.

2d. That the defendant could not avail himself of the objection under the general issue.

No counsel appeared for the defendant.

Ruffin, Judge.

This case comes directly within the decision in the four cases of The Justices v. Shannonhouse, (ante 2 vol. p. 6,) The Justices v. Armstrong, The Justices v. Dozier, and The Justices v. Stewart, and must therefore abide the rule there laid down. It has been argued that there is a difference, because Bonner alone is sued here ; and it is said, that the objection must be pleaded in abatement, and cannot be taken on the general issue. But those cases did not turn on the fact, that some of the obligors who were justices were jointly sued, but that the same person was a co-obligor with others, and also one of the obligees ; which rendered the bond void. It is not like the cases cited of bonds by a feme covert, or a man professed and another. There the incapacity is personal, ami does not affect the obligor who is able to contract. But here the question is, whether a joint and several bond by A and B to A is good, as the bond of either. There can be no delivery to an obligee by himself ; nor by one obligor to another obligor. Tt is like the case of the same person being plaintiff and defendant. No judgment can he rendered in such a case. If it be? it is a nullity. (Pearson v. Nesbit, ante 1 vol. 315.) That indeed was a writ of error ,* but it was one coram nobis for error in fact, not of law ? and was necessary only to identify the person of the same name, who was both plaintiff and defendant, to be the same person. If that had appeared on the record, the judgment would have been vacated, or set aside on motion as being null. There seems to bo no difference between the validity of a judgment and a bond, as affected by this objection. For if the bond would be good as to one, so would the judgment. The true reason governing both and making both void is, thatftbere must, in the nature of things, be parties to both contracts and judicial proceedings.

A personal incapacity of one obligor does not affect the validity of the bond as to the others; but it is otherwise where one of them is both obligor and ob-ligee.

The case of JPearsmi v. JVes-bit, (ante 1 vol. 315.) approved by Rums, J.

If this be correct, non est factum is the proper plea. There cannot be a plea in abatement, that the other ob-ligor is not sued ; for that would not be giving the plaintiffs a better writ, since the obligor not sued is one of the obligees, and he cannot sue himself. The objection is, that the instrument is void in tofo, and therefore not the deed of any of the parties. It is like the case of a joint and several obligation of two, cancelled as to one. by tearing off his seal. It avoids it as. to both ; Iho’ it would be different if they were severally bound. (Pigot's case, 11 Co. 28.) The reason is, the parties intended to have contribution. So here, it never could have been intended, that one of the persons who sealed the instrument, should alone pay to the other the money mentioned in it.

And because it cannot be enforced without that construction, it must be taken to be void altogether.

Per Curiam. — Judgment aeeihmed.