Opinion · Supreme Court of North Carolina
State Ex Rel. Sanders v. Bean
State Ex Rel. Sanders v. Bean, 44 N.C. 318 (N.C. 1853)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1853-06-05
- Topic
- general
Battle, J. It cannot now be denied that the relator, in a suit upon an official bond, made payable to the State or to an officer of the State, is the real plaintiff in the cause. It was so expressly decided in the cases of State v. Lightfoot, 2 Ire. Rep. 306, and McLlaughlin v.
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SANDERSv. BEAN ET AL.,44 N.C. 318(1853)
STATE EX REL. A. H. SANDERS v. JOSHUA W. BEAN ET AL.
Supreme Court of North Carolina
June Term, 1853.
(The cases ofS. v. Lightfoot,24 N.C. 306;McLaughlin v. Neill,25 N.C. 294;Justices, Etc., v. Bonner,14 N.C. 289, cited and approved.)
But it is contended by the plaintiff's counsel that the objection was not open to the defendants upon the pleadings, and could not be taken at the trial. We do not see why, as it appeared upon proof of the bond, and was besides expressly admitted that the relator was one of the obligors. The objection could not be taken by a plea in abatement, because the defendants could not give the plaintiff a better writ. It did not appear in the declaration, and therefore no demurrer could be put in. If good at all, it must have been taken on the trial upon the general issue, when it appeared in the evidence. That the relator should not be permitted to sue at law in such a case will appear to be placed not more upon a technical than upon a substantial difficulty, when it is recollected that he is equally liable with the other sureties for the officer's defaults, and that in case of the insolvency or removal from the State of one or two of them, it might be almost impossible at law properly to adjust the loss among the solvent or remaining sureties.
PER CURIAM. Judgment reversed, andvenire de novoawarded.Cited: Becton v. Becton,56 N.C. 423.Distinguished: McDowell v. Butler,56 N.C. 313.