31 Pa. 522 | Pa. | 1858
The opinion of the court was delivered by
It seems to us very clear that this is no administration bond: for the law requires two or more sureties, and there is only one; and the bond was drawn for two, and only one of them has signed it. In such a case, by the very terms of the law, the letters of administration are void, and the person acting under them became administratrix of her own wrong, which is inconsistent with the attribution of any validity to the bond: see 4 Rawle 382; 4 Watts 21.
A judgment was entered on this bond against the surety for want of an affidavit of defence, and was opened on the terms that the case be tried on the merits. On the trial, the court rejected a defence founded on the principle just announced, as not being on the merits. This was error. The defendant below had a right to a writ of error on the judgment by default, and we cannot regard him as abandoning the main principle on which he would expect a reversal and a judgment in his favour in order to accept a new trial that excludes it. The defence that the party never was bound by the instrument declared on is a defence on the merits.
Judgment reversed, and a new trial awarded.
