Wilmington and Manchester Rail Road Co. v. . Wright

50 N.C. 304

• Court: Supreme Court of North Carolina
• Decided: June 5, 1858
• Status: Published

Opinion

Pearson, J.

To make a grant, there must be a grantor, a grantee and a thing granted; to make a bond, there must be an obligor, an obligee, and a thing to be done. The paper sued on in this case, as a bond, is of no force and effect, because there was no obligee capable of receiving it. The plaintiff was not in esse — had no legal existence at the time the bond bears date. The act of the Legislature gave to it an inchoate existence, but it did not become a corporate body capable of acting for itself a/nd in its own oíame, until certain pre-requisites had been complied with, which was not done until after the date of this instrument.

As the error, in respect to the alleged bond, entitles the defendant to a venvre da oiovo, it is not necessary to consider the other points made in the case. It will be an interesting question, how far the nullity of the bond may affect the validity of the subscription, and the liability of the defendant in respect to the several instalments, for which lie is sued.

Peb CubiaM, Judgment reversed and a venire da oiovo.