Hostler's Aministrator v. Smith

5 N.C. 103

• Court: Supreme Court of North Carolina
• Decided: June 5, 1806
• Status: Published

Opinion

Locke — Judge,

delivered the opinion of the court. In de-, riding the question whether the plaintiff is entitled to judgment upon the scire jadas against the defendant, it is not necessary to determine a previous question made by the counsel for the parties and argued at much length, io-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 2d 3Ld. Ray. 1467, and 2 Strange, 1745, establish this principle beyond all doubt.— The case of Waller vs. Pittman, 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 shew that the bond cannot be avoided on ibis ground.-*-Let judgment be entered for the plaintiff.