Justices of Caswell County Court v. Buchanan, 6 N.C. 40, 2 Mur. 40 (1811)

July 1811 · Supreme Court of North Carolina

6 N.C. 40, 2 Mur. 40

The Justices of Caswell County Court v. Buchanan.

From Carswell.

Guardian bond.. A guardian bond made payable to “ the Justices of Caswell County Court,” &c. was held to be void at Common Law ; as the Justices of the County Court are not a corporation.

‘(’he .tot of 1762, eh. 5, directs guardian bonds to be made payable -Ho the Juutiee or Justices present in Court, and granting such guardianship, the survivors .or survivor of them, their executors or administrators, hi trust,” &c.

This was au action of covenant brought on a guardian bond in Hillsborough Superior Court. The Bond was made payable “ to the Justices of the County Court of Caswell, and their .successors.” Two .objections were made to the Plaintiff’s recovery j 1st, that the bond was not lakt'u pursuant to the directions of the act of V702, cb. 6, that act having directed guardian bonds to be made payable to the “justice or justices present in Court and granting such guardianship, the survivors or survivor of them, their executors or administrators, in trust/’ &c. — iliac the bond-was therefore void as a statute bond. .Odly, that the bond was void at Common Lam, for the-want of proper cord ranting parties, “ the justices of Cas-well County Court” not being a corporate body, or entitled to sue or contract in a corporate name.

Haxu, Judge,

delivered the opinion of the Court:

The act of 17'62, di. 5, gives to the County Court very great powers over the interests of orphans, and the conduct of guardians $ and does not, like the statute, of 2Sd Henry 6th, oh. 10, declare all o'her bonds to be rc:;L that arc not taken agreeable to its provisions. This action might, therefore, probably be sustained, were it not for the other objection which the case presents. Every Plaintiff must sue eilh.-r in his natural or corporate capacity j it cannot be pretended here that the Plaintiffs sue ia either. As to the first, it is sufficient to observe, that their individual names are not inserted in the writ or declaration^ as to the latter, although they sue as justices, &c. yet they have never been created a corporation, by that name to sue or be sued, grant or receive, by its corporate name, and do all other acts as natural persons may — (1 Blac. Com. 476.) Judgment for the Defendant.