Opinion
(June Term, 1847.)
1. It is of the essence of a bond to have an obligee as well as an obligor; it must show upon its face to whom it is payable.
2. The defect cannot be supplied by showing a delivery to a particular person.
APPEAL from DAVIE Spring Term, 1846; Caldwell, J.
This was a summary proceeding under the act, Rev. Stat., ch[.] (263) 45, secs. 17, 18, to obtain judgment on a bond given by the defendant for the forthcoming of property levied on by a constable. The paper produced as the bond was as follows:
Know all men by these presents, State of North Carolina, Davie County, that I, the undersigned, bind myself in a bond of $90 for the forthcoming of a wagon in the possession of Samuel Drake, executed and levied on as his property by A. Sheets, deputized to the use of A. Taylor. It is to be delivered twenty days from this day and date, Sundays excepted, this 27 May, 1843. Whereunto I set my hand and seal. SALLY CALL.
Witness: J. J. SPARKS.
The witness Sparks proved the execution of the paper-writing and its delivery to the said Sheets, and it was thereupon read in evidence. The defendant objected to a recovery on it because it did not appear that the said bond was payable to any one. This question was reserved, the trial proceeded, and the jury rendered a verdict for the plaintiff. On the question reserved the court was of opinion with the plaintiff. Judgment was rendered for the plaintiff, and the defendant appealed.
Boyden for plaintiff.
Craige for defendant.
This is a proceeding under the acts of 1807, 1822, and 1828. Rev. Stat., ch. 45, secs. 17, 18. The case is as follows: In the year 1843 one Almon Taylor obtained a judgment before a justice of the peace against Samuel Drake, an execution was issued and placed by him in the hands of A. Sheets, who was deputized by a magistrate to execute it. The officer levied the execution on a wagon as the property of the defendant, and left it in his possession. For the forthcoming of the wagon the paper upon which the proceedings are founded was executed by the defendant and delivered to the officer, Sheets, on 27 May, (264) 1843. The notice in this case issued 29 July, 1845. In the meantime Sheets had died and the plaintiff had administered upon his estate. Several questions were made on the trial of the cause in the Superior Court. We deem it unnecessary to notice any but the first objection taken by the defendant. It lies at the foundation of the plaintiff's claim. The act requires of an officer who levies an execution on personal property to take a bond from the defendant for its forthcoming, when he leaves it with the owner. The paper-writing taken by Sheets is not a bond; it is made payable to no one. It is of the essence of a bond to have an obligee as well as an obligor; it must show upon its face to whom it is payable. Hurleston on Bonds, 2 Com. Dig., title, "Obligation." This was expressly so decided by this Court in Graham v. Holt, 25 N.C. 302. In a declaration on this instrument, in an action on it, the plaintiff could not supply the defect by an averment; if he did, the defendant might demur, for the declaration would show that there was no obligee, no one to whom the obligor was bound. As this objection lies at the threshold of the plaintiff's claim, we have, as before stated, confined our attention to it.
PER CURIAM. Reversed, and judgment for defendant.
Cited: Leach v. Flemming, 85 N.C. 451; Sandlin v. Ward, 94 N.C. 497.
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