State ex rel. Grier v. Hill, 51 N.C. 572, 6 Jones 572 (1859)

Aug. 1859 · Supreme Court of North Carolina

51 N.C. 572, 6 Jones 572

State on the relation of JOHN F. GRIER v. M. F. HILL, et. al.

Where a constable’s official bond was signed by four persons as obligors, but a blank for the constable’s aaanie, in the condition, was left unfilled, so that it did not appear from the bond who was the constable, it was Held that such omission rendered €10 condition insensible and void, and the bond absolute, so that no one, as relator, could declare on it.

Held further, that such omission was not cured by the 9th section of the 78th chapter of the Revised Oode.

Tuts was an aotiot of debt, fried before his Honor, Judge Heath, at-a Special Term, (June, 1859,) of Ashe Superior Court.

The action was brought for the breach of a bond given by the defendants to the State of North Carolina, in the following words, to wit:

“ State of North Carolina, Ashe County.

“Know all men by these presents, that we, Martin Hill, Osborne Edwards, Joseph Niehardson, and J. II. Doughton, are held and firmly bound unto the State of North Carolina, in the sum of four thousand dollars, current money, for the which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated this the 28ih day of February, 1854. The condition of the above obligation is such, that whereas the above bounden,

, is the day of the date hereof elected to act as constable, for the county aforesaid. Now, if the said

, well and truly execute and faithfully discharge his duty in said office, according to law, and diligently endeavor to collect all claims which may he put into his hands for collection, and faithfully pay over all sums recovered thereon, either with, or without suit, to the persons to whom the same may be due, then the above obligation to be void, otherwise, to remain in full force and effect.”

Signed by the above named obligors.

The breach of the bond declared on by the plaintiff, was a failure by the defendant, Hill, as constable, to collect a debt placed in his hands for collection, by the relator in May, 1854. It was admitted that the defendant Ilill was duly elected and admitted into office, as a constable for the year, 1854, and it was admitted that he received and failed to collect the debt in question, which was collectable. But it was contended on behalf of the defendants that they were not bound by said bond for his faithful discharge of his duty in said office, and this was the only point made in the case. The plaintiff, tiff, in order to cure the alleged defect in the condition of the bond arising from the omission of the name of the constable, offered in evidence the record of the County Court, at February Term, 1854, upon which it was entered, that “Martin II. Ilill, having been elected as constable for Elk Creek District, entered into bond as such, in the sum of four thousand dollars, with S. 0. Edwards, Joseph Richardson, and J. II. Doughton, as his sureties.” The reading of said record for the purpose above stated, was objected to by the defendant, but was permitted by the Court.

It was then agreed that a verdict might be entered for the plaintiff, subject to the opinion of the Court, whether upon the whole case the plaintiff was entitled to recover; with permission, if the Court should be of opinion against the plaintiff', to sot aside the verdict and enter a nonsuit; otherwise, judgment to be entered upon the verdict.

And the Court, upon consideration, being of opinion in favor of the plaintiff, refused to set aside the verdict and enter a nonsuit, but ordered a judgment to be entered on the verdict, and the defendants appealed.

Weal, for plaintiff.

Lenoir and Orunvpler, for defendants.

Battle, J.

The condition of the bond upon which the suit is brought, at the instance of the relator, is so uncertain, that it cannot, by any reasonable intendment, be made sensible and valid. There are four obligors in the bond, and it does not appear from the condition, which of them had been elected constable, for the faithful discharge of whose office the bond was given. That is an omission which no construction can supply, which makes a difference between the present, and the case of Foster v. Frost, 4 Dev, Rep. 424, upon which the plaintiff’s counsel relies. In that case, by the rejection of some figures as surplusage, the condition was made sensible. Here, there is nothing to be rejected, and there is nothing in the instrument, itself, to show us what is to be supplied. In that respect, it is like a blank left for the name of a devisee or legatee, which cannot be supplied by construction. The similarity extends further; for the names cannot be supplied by any extraneous proof. Neither a will, nor a deed, will admit of parol, or other proof, dehors, the instrument, to supply so material a part as the name of a devisee or legatee in a will, or a party to a deed. The condition of the obligation being insensible, it is void, and the consequence is, that the bond is an absolute one, payable ',o the State without any condition. Whether the Attorney General could sue on it in behalf of the State, and recover the whole amount, it is unnecessary for us to decide. It is certain, that, treated as an absolute bond to the State, no private individual can sue on it, as a relator, for as such, it does not appear that he has any interest in it.

Rut it is said that the defect in the condition is remedied by the 9th section of the 78th chapter of the Revised Code.. By reference to that section it will be seen that was intended to cure all irregularities in the taking of any official bond, and in the conferring of the office, and also, to provide that “any variance in the penalty or condition of the instrument from the provisions prescribed by law,” shall not invalidate the bond or condition. It is manifest, at a glance, that the defect in the instrument now before us, is not that the bond was improperly taken, or the office irregularly conferred, nor that there is any variance, either in its penalty or condition, from the provisions prescribed by law, but is a fatal omission of the name of the person who had been elected constable, whereby the whole condition is rendered senseless, and, therefore, necessarily void. It cannot be helped by any intendment^ or construction, because there is nothing in any part ot the instrument to show us what ought to be intended, and there is nothing upon which any construction can operate.

The judgment must be reversed, and a judgment of nonsuit entered.

Pee OukiaM, Judgment reversed.