Dumas v. Powell

22 N.C. 122

• Court: Supreme Court of North Carolina
• Decided: December 5, 1838
• Status: Published

Opinion

Danibi,, Judge,

after stating the case as above, proceeded as follows : We have examined the evidence, and the proofs are sufficient to satisfy us that the defendant’s intestate did execute to the plaintiff, the obligation mentioned in the bill, for the consideration therein stated, and for the sum of $189-5^0-, payable one day after date, and dated the 25th of May, 1827. There is no proof that the said obligation has ever been paid. The plaintiff has appended to his bill an affidavit that the debt is unpaid, and that the obligation has been destroyed by accident, and there is strong corroborating proof of the truth of this affidavit. We are of opinion that he is entitled to a decree for f 189-^0-, principal money and interest on the same, to be computed from the 26th day of May, 1827, on tendering to the defendant a bond with security to indemnify the estate of his intestate against any liability which may hereafter arise concerning the said supposed lost bond. But before the decree can be render ed, there must be an inquiry and report as to the amount of assets in the hands of the defendant, unless he waive such inquiry.

When the answer of an administrator neither admits nor denies assets, there must be an inquiry jj”1tt/rifert amount of assets in the defend-?nl f less So™‘ waive such beüoreíhe a decree,

Per Curiam. Direct accordingly.