Summary
In Justices v. Dozier, 14 N.C. 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 above mentioned case, and that of Justices v. Bonner, 14 N.C. 289, which is in all things similar, must govern the one now before the Court.
Summary of this case from Davis v. SomervilleOpinion
(December Term, 1831.)
A bond made by a guardian and his sureties to A. B. and the rest of the justices, is not in pursuance of the Act of 1762 (Rev., ch. 69, sec. 7), and can be supported only at common law. If one of the obligors be a justice at its execution it is void as to all.
THIS was an action of debt upon a guardian bond. The bond was made payable to "Willis Etheridge, Joseph Ferebee and the other justices of Currituck County." Upon oyer had, and non est factum pleaded, it was proved that Dozier, one of the obligors, was at (288) the execution of the bond a justice of the peace. The action was brought in the name of those justices who were in office at its commencement.
The record in this case also was lost, and the reporter is therefore unable to give a more particular statement of the facts.
Kinney and Devereux for plaintiffs.
Hogg contra.
The principal question in this case has been already decided in Justices of Cumberland v. Armstrong et al., ante, 284. The Act of 1762 (Rev., ch. 69, sec. 7) directs a guardian bond to be made payable to the "justices present in court, the survivor or survivors of them, their executors or administrators." Under the statute therefore, the bond is nothing more than a common law bond, payable to individuals and their personal representatives in trust for another. This being the case, this bond must be taken to have been given to the individuals who were justices, by the description of their office. Dozier, then, was both obligor and obligee, and the bond is void. There has been an attempt to distinguish this case from that of the Justices v. Armstrong, by the circumstance that it is payable to "Willis Etheridge, Joseph Ferebee, and the other justices of Currituck County." This is said to exclude, by necessary implication, that justice who was obligor, as if it had been expressed, "the rest except Dozier." That depends upon what the word "rest" refers to. It is introduced in that part of the bond in which the obligees are set forth, and was designed to describe them, and it plainly refers to the obligees, Etheridge and Ferebee, who are expressly named, and was designed to include, and does include as obligees all that class of persons of which those two form parts. This is the plain and obvious grammatical construction of the words, and we cannot imply an intention of the parties or insert an exception against those words.
PER CURIAM. Judgment affirmed. Cited: Justices v. Bonner, post, 290; Davis v. Somerville, 15 N.C. 383.
The case of The Justices of Martin v. Stewart was in every respect similar to the above, and the same opinion was filed in both.
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