State Ex Rel. Henderson v. McAleer

Supreme Court of North Carolina

State Ex Rel. Henderson v. McAleer

27 N.C. 632

DecidedJune 5, 1845

StatusPublished

This text of 27 N.C. 632 (State Ex Rel. Henderson v. McAleer) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Ex Rel. Henderson v. McAleer, 27 N.C. 632 (N.C. 1845).

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Opinion

Daniel, J.

We concur with his Honor, that the decree could not be given in evidence, on any breach that could be assigned by -the relator on this refunding bond. The act of Assembly, Rev. Stat. ch. 46, sec. 18, declares, that a refunding bond shall be and- enure to the sole use and advantage of the creditors of the testator or intestate. The payment by the executor was his voluntary act, and, if he had chosen, he might have taken a bond to himself, as an indemnity against future demands against him beyond his assets. He cannot have recourse to the refunding bond required by the statute; •for, if'he could, he might exhaust it and thus deprive other creditors of the benefit, which the act gives exclusively to the creditors.

Per Curiam, Judgment affirmed.

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Daniel, J.

We concur with his Honor, that the decree could not be given in evidence, on any breach that could be assigned by -the relator on this refunding bond. The act of Assembly, Rev. Stat. ch. 46, sec. 18, declares, that a refunding bond shall be and- enure to the sole use and advantage of the creditors of the testator or intestate. The payment by the executor was his voluntary act, and, if he had chosen, he might have taken a bond to himself, as an indemnity against future demands against him beyond his assets. He cannot have recourse to the refunding bond required by the statute; •for, if'he could, he might exhaust it and thus deprive other creditors of the benefit, which the act gives exclusively to the creditors.

Per Curiam, Judgment affirmed.

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Bluebook (online)

27 N.C. 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-henderson-v-mcaleer-nc-1845.