Sutton v. . Owen

65 N.C. 123

• Court: Supreme Court of North Carolina
• Decided: January 5, 1871
• Status: Published

Opinion

Eeajde, J.

This suit was instituted before the C. C. P.* and is governed by the law then existing. C. O. P., sec. 4.

The objection that the bond sued on is not negotiable (being for the payment of money and to do something else) and therefore did not authorize the plaintiff to sue in his own name, is well taken. Knight v. Wilmington & Manchester Railroad Co., 1 Jones, R. 357.

Under the C. C. P., sec. 55, the “ real party in interest may sue.”

The fact being that the bond is not negotiable under the Rev. Code, ch. 13, sec. 1, the endorsement of the obligee, Carter, did not make him liable as surety, but he is liable ■only as guarantor and in that capacity he was entitled to notice of the default of the principal debtor.

There is error. Judgment reversed and judgment here Tor defendant Carter.

Per Curiam. Judgment reversed.