Davis ex rel. Snow v. Somerville, 15 N.C. 382, 4 Dev. 382 (1834)

June 1834 · Supreme Court of North Carolina

15 N.C. 382, 4 Dev. 382

Peter R. Davis et. al. upon the relation of Theophilus Snow v. James Somerville.

A guardian bond taken according to the act of 1762 (j?eu. ch. 69. § 7.) is nothing but a common law bond payable to the individuals on the bench, and if executed by one of them, is void.

The cases of the Justices y Dozier, (ante 3. vol. p. 287J the Justices v Somier, (15. 289,) the Justices v Armstrong (Id. 284,) and the Justices v Shannonhouse, (ante 2 vol. p. 6.) approved.

Debt upon the following bond :

“ Know all men by these presents, that wc R. H. J. “ and James Somerville of &c. are held and firmly “ bound to Peter R. Davis, Richard Bullock, and James “ Somerville, Justices of the Court of Pleas and Quar- “ ter Sessions for the county of Warren in the sum of “ &c. to be paid to the said Justices or the survivor or “ survivors of them, their executors or administrators on trust &c.” with a condition that R, H. J. should well and truly improve the estate of the relator, to whom he had been appointed guardian. On the tidal at Warren on the last circuit, the only question made in the cause arosG upon the plea of non estfactum, and on that it was admitted that the defendant was the same James Somer. •oille who was mentioned in the bond as an obligee, and who was one of the plaintiffs. It was also admitted that the defendant and the other obligees were the Justices jn court at the time the appointment of guardian to the relator was made.

Upon these facts his Honor, Judge Settee directed a nonsuit to be entered, and the plaintiffs appealed.

W. II. Haywood for the plaintiffs.

Badger contra.

Daniee-, Judge.

This guardian bond'was taken under and by virtue of the act of 1762, (Beu. c. 69. sec. 7.) whieh directs a guardian bond to be made payable to the “justices present in Court, the survivor or survivors of them, their executors or administrators.” It has been argued by the plaintiff’s counsel that the justices who were present in Court, (one of whom was the defendant,) when the appointment of the guardian and execution of tfie b6nd took place, were a quasi corporation for that particular purpose, and although the defendant was one of the corporators, yet he in his individual character, might give a bond to the corporation, and it would bind him.

In the case of the Justices of Currituck v Dozier, (ante 3. vol. p. 287,) where the case stated that Dozier was both obligor and obligee with others named in the guardian bond, this Court said, “a guardian bond according to the statute is nothing more than a common law bond payable to individuals and their personal representatives, in trust for another, that Dozier was both obligor and obligee, and the bond was void. It seems to us that the aboveinentioned case, and that of The Justices v Bonner, (ante 3 vol.p 289) which is in all things similar, must govern the one now before the Court. — • This case comes within the rule laid down by the Court in the cases of The Justices v Shannonhouse, (ante 2 col. p. 6.) and The Justices v Armstrong, (Ib. 3. vol. 284. )

We think the judgment must be affirmed.

Ter Curiam. — Judgment aeeirmeb. "