Williams v. . Ehringhaus , 14 N.C. 297 ( 1831 )

The suit was brought in the names of the survivors of those justices who were in office when the bond was executed.

His Honor being of opinion for the plaintiffs, a verdict was (298) taken accordingly, and the defendant appealed. It was not expected that the frequent decisions that bonds intended to be official, which had not that character because of some want of conformity to the statute, were not void, but would be supported as good voluntary bonds at common law, that any question would be again made upon it. The Governor v. Meilan (2 Law Rep., 460) was the first case upon the subject. The Governor v. Witherspoon (3 Hawks, 42) and many others have followed it. And in the Justices of Cumberland v. Armstrong it is plainly declared to be the opinion of the Court that a bond payable to the justices of a particular county is not void, for the obligees are sufficiently identified by that description. It follows that the present bond is valid.

It is said, however, that the county court has no capacity to take such an obligation. Admit it, and what is the consequence? This bond is not taken to be given to the justices, as constituting a court, but given to them as individuals by the description of their office, instead of their names. That is the ground of all the decisions on the subject down to that of Branch v. Elliott, ante, 86. Unless, therefore, it is void at common law for uncertainty, it must be supported, and that it is not void for that reason has been settled in those cases. The bond directed by a statute must be taken according to it, to be proceeded on under the statute. But to take such a bond as the present, there is no necessity for a special authority. The distinction is between taking a bond without such an authority and taking it when forbidden, as in the case of bail bonds.

PER CURIAM. Judgment affirmed.

Cited: Reid v. Humphreys, 52 N.C. 260.

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