Opinion
June Term, 1806.
An executor appeals from the judgment of the County Court and enters into bond with security. The bond is binding on the parties, and on a scire facias against the security founded on the appeal bond and on a judgment in the Superior Court against the executor, judgment given in favor of the plaintiff.
THE plaintiff brought suit against the executors of John Howell in the County Court, and obtained judgment, by which judgment assets were considered to be in the hands of the defendant sufficient to satisfy the plaintiff's demand. The defendants appealed to the Superior Court, and the defendant, Benjamin Smith, became bound in an appeal bond as their security under the acts of Assembly requiring appellants to give security. In the Superior Court judgment was against rendered in favor of the plaintiff; one of the executors afterwards (104) died, and the plaintiff sued out a scire facias against Smith, the security for the appeal, to show cause why judgment should not be entered against him for the debt and costs recovered against the appellants. The case was sent to this Court for the opinion of the judges on the question whether the plaintiff is entitled to have judgment entered against the defendant upon this scire facias.
Jocelyn for plaintiff.
Haywood and Duffey for defendant.
From Wilmington.
In deciding (113) the question whether the plaintiff is entitled to judgment upon the scire facias against the defendant, it is not necessary to determine a previous question made by the counsel for the parties and argued at much length, to wit, whether executors or administrators, when appellants, are bound to enter into bond with security; for we are of opinion that whether they are thus bound or not, if they enter into bond and give security, such bond is obligatory upon the parties. The cases cited from 2 Ld. Ray., 1467, and 2 Strange, 1745, establish this principle beyond all doubt. Waller v. Pitman, 1 N.C. 324, relied on by defendant's counsel, is not applicable to the present case. There the bond executed by the appellant and his securities contained none of the substantial parts prescribed by the act of Assembly; it was totally variant, and on that account was declared by the Court to be insufficient to ground a judgment on. In the present case the bond is in perfect conformity with the act, and in itself complete, but is attempted to be avoided on the ground that the executors, who appealed, were not bound to give security. The cases cited from Lord Raymond and Strange show that the bond cannot be avoided on this ground. Let judgment be entered for the plaintiff.
Cited: Arrington v. Coleman, ante, 103.