Davis v. . Somerville , 15 N.C. 382 ( 1834 )

"Know all men by these presents, that we R. H. J. and James Somerville of etc., are held and firmly bound to Peter R. Davis, Richard Bullock and James Somerville, Justices of the Court of Pleas and Quarter Sessions for the county of Warren in the sum of etc., to be paid to the said Justices or the survivor or survivors of them, their executors or administrators on trust, etc.," with a condition that R. H. J. should well and truly improve the estate of the relator, to whom he had been appointed guardian. On the trial at Warren on the last circuit, the only question made in the cause arose upon the plea of non est factum, and on that it was admitted that the defendant was the same James Somerville who was mentioned in the bond as an obligee, and who was one of the plaintiffs. It was also admitted that the defendant and the other obligees were the justices in court at the time the appointment of guardian to the relator was made. (383)

Upon these facts his Honor, Judge Settle, directed a nonsuit to be entered, and the plaintiffs appealed. This guardian bond was taken under and by virtue of the act of 1762 (Rev. c. 69, sec. 7), which directs a guardian bond to be made payable to the "justices present in Court, the survivor or survivors of them, their executors or administrators." It has been argued by the plaintiff's counsel that the justices who were present in Court (one of whom was the defendant), when the appointment of the guardian and execution of the bond took place, were a quasi corporation for that particular purpose, and although the defendant was one of the corporators, yet he in his individual character, might give a bond to the corporation, and it would bind him.

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. This case comes within the rule laid down by the Court in Justices v. Shannonhouse, 13 N.C. 6, and Justices v. Armstrong, 14 N.C. 284.

PER CURIAM. Judgment affirmed.

(384)