Upon oyer the bond was set forth in hoec verba:
"Know all men that we, Henry Holmes, John Bonner and Baker Hoskins are held and firmly bound unto Exum Simpson, Esquire, and the rest of the justices assigned to keep the peace of the county of Chowan, in the full sum of, etc., to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally by these presents. Sealed," etc.
The condition was that the obligor Holmes should improve the estate of the wife of the relator as her guardian, and should pay it over at her full age.
Several pleas were entered for the defendant, but the cause being decided upon that of non est factum, it is not necessary to state them or the breaches assigned by the plaintiffs. The original plaintiffs were those justices of Chowan who were the survivors of the obligees at the date of the writ, and among them was Baker Hoskins, one of the obligors. On the trial it was proved that Holmes and Hoskins, two of the obligors, were justices at the execution of the bond, upon which his Honor nonsuited the plaintiffs, who appealed. This case comes directly within the decision in the four cases of The Justices v. Shannonhouse, 13 N.C. 6, The Justices v.Armstrong, ante, 284; The Justices v. Dozier, ante, 287; and TheJustices v. Stewart, and must therefore abide the rule there laid (290) down. It has been argued that there is a difference, because Bonner alone is sued here, and it is said that the objection must be pleaded in abatement and cannot be taken on the general issue. But those cases did not turn on the fact that some of the obligors who were justices were jointly sued, but that the same person was a coobligor with others, and also one of the obligees, which rendered the bond void. It is not like the cases cited of bonds by a feme covert or a man professed and another. There the incapacity is personal, and does not affect the obligor who is able to contract. But here the question is, whether a joint and several bond by A. and B. to A. is good as the bond of either. There can be no delivery to an obligee by himself, nor by one obligor to another obligor. It is like the case of the same person being plaintiff and defendant. No judgment can be rendered in such a case. If it be it is a nullity. Pearson v. Nesbit,12 N.C. 315. That indeed was a writ of error, but it was one coram nobis for error in fact not of law, and was necessary only to identify the person of the same name, who was both plaintiff and *Page 242 defendant, to be the same person. If that had appeared on the record, the judgment would have been vacated or set aside on motion as being null. There seems to be no difference between the validity of a judgment and a bond, as affected by this objection. For if the bond would be good as to one, so would the judgment. The true reason governing both and making both void is, that there must, in the nature of things, be parties to both contracts and judicial proceedings.
If this be correct, non est factum is the proper plea. There cannot be a plea in abatement that the other obligor is not sued, for that would not be giving the plaintiff a better writ, since the obligor not sued is one of the obligees, and he cannot sue himself. The objection is that the instrument is void in toto, and therefore not the deed of any of the parties. It is like the case of a joint and several obligation of two, canceled as to one by tearing off his seal. It avoids it as to both, (291) though it would be different if they were severally bound. Pigot's case, 11 Co., 28. The reason is, the parties intended to have contribution. So here it never could have been intended that one of the persons who sealed the instrument should alone pay to the other the money mentioned in it. And because it cannot be enforced without that construction, it must be taken to be void altogether.
PER CURIAM. Judgment affirmed.
Cited: Davis v. Somerville, 15 N.C. 383; Sanders v. Bean, 44 N.C. 319;Justices v. Simmons, 48 N.C. 188.