Waddell v. . Moore

24 N.C. 261

• Court: Supreme Court of North Carolina
• Decided: June 5, 1842
• Status: Published

Opinion

Daniel, J.

The defendant executed to the plaintiff, “executor of Titus Darden, deceased,” the bond declared on. The bond was conditioned, at the expiration of the term, to return in good repair the farm belonging to the heirs of Titus Darden, which farm the defendant had leased for a term of years. The damages to, be recovered, on a breach of the conditions of this bond, could not in any way be made the personal assets of the testator. The obligee being described in the bond “executor of Titus Darden” does not in law compel him to sue as executor. The words are but surplusage; and he may and ought to sue in his own name, as on a bond in which he has the legal title. The plaintiff placed this bond in the hands of 'the guardian, because, in equity, the heirs of Darden had a right to all the benefit arising under it.

Secondly; the guardian was not a party to the record in this suit, and was not personally interested in the event of the suit. He had no interest in the damages or in the record. The circumstance that the guardian felt himself bound to pay the costs out of the funds of his wards, if the defendant should prevail and have a judgment to recover his costs, did not disqualify him from being a witness. The judgment must be affirmed.

Per Curiam, ' < Judgment affirmed.