Judgment reversed and Judgment for the defendant.
Phelps v. Call, 29 N.C. 262, 7 Ired. 262 (1847)
June 1847
·
Supreme Court of North Carolina
29 N.C. 262, 7 Ired. 262
HIRAM PHELPS vs. SALLY CALL.
It is ’of the essence of a bond to have an obligee as well as an obligor ; it must shew upon its face to whom it is payable.
The defect cannot be supplied by shewing a delivery to a particular person. The case of Graham v. Holt, 3 Ired. 302, cited and approved.
Appeal from the Superior Court of Law, of Davie County, at the Spring Term, 1846, his Honor Judge Caldwell presiding.
*263This was a summary proceeding under the Act, Rev-. Stat. ch. 45, sec. 17,18, to obtain judgment on a bond given by the defendant for the forthcoming of property levied on by a constable. The paper produced as the bond was as follows:
“ Know ail men by these presents, State of North Carolina, l)avie County; that I the undersigned bind myself in a bond of ninety dollars for the forthcoming of a waggon in the possession of Samuel Drake, executed and levioS on as his property by A. Sheets, deputised, to the use of A. Taylor. It is to be delivered twenty days from this day and date, Sundays excepted, this; May 27th, 1S43, whereunto I set my hand and seal.
(Signed.) SALLY CALL.'’
Witness, J. J. Sparks.
The witness Sparks proved the execution of the paper writing and its delivery to the said Sheets, and it was thereupon read in evidence. The defendant objected to a recovery on it, because it did not appear that the said bond was payable to any one. This question was reserved, the trial proceeded, and the jury rendered a verdict for the plaintiff. On Court was of opinion with th rendered for the plaintiff and the questij e plain the' de ved, the
Boyden, for the plaintiff;
Craige, for the defendant/
This is a proceeding, unde] 1828. Rev. Stat. ch. 45, sec. 17, 18. The case is as follows : In the year 1843, one Almon Taylor obtained a judgment before a Justice of the Peace, against Samuel Drake, an execution was issued,-and placed by him in the hands of A. Sheets, who was deputised by a Magistrate to execute it. The officer levied the execution on at Waggon, as the property of the defendant, and left it in Ms possession. For the forth-coming of the waggon; the paper, upon which the proceedings are founded, was executed by the defendant and delivered to- the officer' ’ the adts *264Sheets on the 27th of May 1843. The notice in this casé issued the 29th day of July 1845. In the meantime Sheets had died, and the plaintiif administered upon his estate. Several questions were made on the trial of the cause in the Superior Court. We deem it unnecessary, to notice any but the first objection taken by the defendant. It lies at the foundation of the plaintiff’s claim. The act requires of an officer, who levies an execution on person-' al property, to take a. bond from the defendant for its forth-coming, when he leaves it with the owner. The paper writing, taken by Sheets, is not a bond; it is made payable to no one. It is of the essence of a bond to have an obligee as well as an obligor — it must show upon its face to whom it is payable. Hurleston on Bonds, 2 Com. Dig. title Obligation, This was expressly so decided by this Court, in the case Graham against Holt, 3d Ire. 302. In a declaration on this Instrument, in an action on it, the plaintiff could not supply the defect by an averment; if he did, the defendant might demur, for the declaration would show that there was no obligee, no one to whom the obligor was bound. As this objection lies at the threshold of the plaintiff’s claim, we have as before stated confined our attention to it.