Opinion
(December Term, 1828.)
1. A guardian bond executed by an acting justice of the peace "to A, B, and the rest of the justices," etc., is nugatory.
2. Such bonds should be made as prescribed by the Act of 1762, ch. 69, sec. 7, to the justices present in court granting the guardianship.
DEBT upon a bond given by one Muse, as guardian, to the relators, to which the defendants were sureties, payable to "John Mullen and Ambrose Knox, and the rest of the justices of Pasquotank." The writ was "to answer John Mullen and Ambrose Knox, and the rest of the justices assigned to keep the peace, etc."
No counsel for the relators appeared in this case.
Kinney, for the defendants.
FROM PASQUOTANK.
Upon the trial on non est factum, it turned out that the defendants were two of the acting justices of Pasquotank, at the (7) date of the bond; whereupon his Honor, Judge STRANGE, holding that the same person could not be both plaintiff and defendant, directed a nonsuit, from which the relators appealed.
The bond in this case should have been taken to the justices present in court, and granting such guardianships, as is prescribed by the Act of 1762, chap. 69. But being taken to "Mullen and Knox, and the rest of the justices, etc.," and the defendants being two of them, the bond is nugatory, and of no effect as to them.
PER CURIAM. Affirmed.
Cited: Justice v. Armstrong, 14 N.C. 287; Justice v. Bonner, Ib., 289; Dickey v. Allen, 15 N.C. 44; Vanhook v. Barnett, Ib., 269; Davis v. Somerville, Ib., 383; Newson v. Newsom, 26 N.C. 389; Bank v. Griffin, 107 N.C. 174.