Opinion
December Term, 1850.
1. Although a bill or promissory note may be made payable to A. B. or bearer, yet a bond cannot. That being a deed, it must be made to some certain obligee, to whom it may be delivered.
2. After the bond has become a perfect instrument, the obligee can, by indorsement, order the payment to be made to the bearer, for, in respect to their transfer, notes and bonds are put on the same footing. But their nature, in their inception and before indorsement, is not touched by the statute and remains as at common law.
APPEAL from the Superior Court of Law of BEAUFORT, at Fall Term, 1850, Ellis, J., presiding.
Rodman for plaintiff.
Biggs and Shaw for defendant.
The declaration is in debt on a single bond for $325.05, (410) payable to Ezekiel Midgett, or bearer, and on non est factum pleaded the defendant objected to the recovery by the plaintiff as the bearer, because the bond was not delivered to him, nor was it a contract with him. Of that opinion was the presiding judge, and the plaintiff submitted to a nonsuit and appealed.
The judgment must be affirmed. Although a bill or promissory note may be made payable to A. B. or bearer, or to the bearer, yet a bond cannot. That being a deed, it must be made to some certain obligee, to whom or for whom it may be delivered. In that respect it is like other deeds, which cannot be effectually made to the bearer, that is, to any person who may happen to come into possession of them. There are essential differences between notes and bonds, in many respects. The former, for instance, can be made in blank as to the sum, the payee, the time of payment, and the like, and may be filled up by any person duly authorized, though orally; while a bond must be complete from the beginning in all those respects. The plaintiff cannot sue on this bond, because he is neither named in it as the obligee nor is it transferred to him by the obligee named. If it be a bond at all, it is so as being payable to Ezekiel Midgett, and the words "or bearer" are unmeaning, and may be rejected as surplusage. That is supposed to be very clearly the law; and then no person can claim the bond but by the assignment of Midgett under the statute. The plaintiff must, then, fail for want of evidence of a delivery to Midgett, or to any one for him, and also for want of Midgett's indorsement. It was argued that the effect of the statute making bonds negotiable, and transferable by indorsement, in the same manner as promissory notes, must be to allow this form (411) of a bond, that is, payable to bearer or to A. B. or bearer. But that consequence can by no means follow. On the contrary, the instrument must be a perfect bond before it can be negotiated; for, it is only as a bond for money that it is susceptible of transfer, and then it is by indorsement. No doubt, after it has become a perfect instrument the obligee can, by his indorsement, order the payment to be made to the bearer; for, in respect to their transfer, notes and bonds are put on the same footing. But their nature, in their inception and before indorsement, is not touched by the statute, and remains as at common law. The counsel for the plaintiff relied also on the case of Fairly v. McLean, 33 N.C. 158, as an authority for the validity of such bonds, and that they inure to the benefit of the bearer. But that is a mistake, for the court then gave no opinion on the question, and could give none. The action was brought for three bonds, of which two were payable to the intestate and the other to him as bearer; and in the Superior Court it was held that all three vested in the son by the gift and delivery from the intestate, and yielded the point as to the one payable to him or bearer. The question now under consideration was, therefore, not open to the court upon that occasion, and that case cannot affect the present.
PER CURIAM. Judgment affirmed.
Cited: Respass v. Latham, 44 N.C. 143; Gregory v. Dozier, 51 N.C. 5; Bryan v. Enterprise, 53 N.C. 263; Bland v. O'Hagan, 64 N.C. 472; Parker v. Carson, ib., 564; Weith v. Wilmington, 68 N.C. 30; Spence v. Tapscott, 93 N.C. 249; Humphreys v. Finch, 97 N.C. 307.
(412)