Opinion
July Term, 1811.
From Caswell.
1. Guardian bond. A guardian bond made payable to "the justices of Caswell County Court," etc., was held to be void at common law, as the justices of the County Court are not a corporation.
2. The act of 1762, ch. 5, directs 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," etc.
THIS was an action of covenant brought on a guardian bond in Hillsboro 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: (1) That the bond was not taken pursuant to the directions of the act of 1762, ch. 5, that act having directed guardian bonds to be made payable to the "justice or justice present in court and granting such guardianship, the survivors or survivor of them, their executors or administrators, in trust," etc.; that the bond was therefore void as a statute bond. (2) That the bond was void at common law, for the want of proper contracting parties, "the justices of Caswell County Court" not being a corporate body, or entitled to sue or contract in a corporate name.
Laws 1762, ch. 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 23 Henry VI., ch. 10, declare all other bonds to be void that are not taken agreeably 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 either in his natural or corporate capacity. It cannot be pretended here that the (41) plaintiffs sue in 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, etc., 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 Bl. Com., 476. Judgment for the defendant.