Headley v. Good

24 Tex. 232 | Tex. | 1859

Bell, J.

We are of opinion, that there is no error in the judgment of the court below. The suit is founded upon the provisions of the 111th section of the Act of 1848, in relation to the estates of deceased persons. The petition sets forth all the facts necessary to entitle the plaintiff to maintain the action against the makers of the bond. The statute prescribes the manner in which the bond, for the purpose of enabling an interested party to take the estate out of the hands of the administrator, shall be executed. The bond, in the present case, complies with the requirements of the statute.

The statute provides, that after the execution of the bond, any creditor of the estate, whose claim is unpaid, and has been allowed by the executor or administrator, previous to the filing of such obligation, and approved by the chief justice, or established by suit against the executor or administrator, previous to the filing of such obligation, -shall have the right to sue on such obligation, in his own name, and shall be entitled to judgment thereon, for the amount of his claim. The statute provides, that in the ease of suit by the creditors against the distributees of the estate, no one of the distributees shall be liable, beyond his just proportion, according to the estate he may have received in the distribution. The present suit is not against the distributees, as such, but is upon the bond; and there was no error in awarding execution, as in ordinary cases.

We are of opinion, that the court did not err in sustaining the plaintiff’s exception to the plea of the defendants, setting up a failure of the consideration for which the note was given. The plea alleged, that the note was executed to secure the professional services of the payee, in defending the maker of the note, upon a criminal accusation. It states further, that Froman, the maker of the note, had entered into bond for his appearance in court; that he failed to appear; that judgment nisi was rendered against him on the bail-bond, and scire facias issued, &c.; and that the plaintiff below refused to defend the suit upon the scire facias, without additional fee.' We do not think the plea a good one. It shows no breach of the undertaking, on the part of the payee of the note, to render the service which he con-

tracted to render. The plea alleges, that he undertook to defend Froman, upon a criminal accusation. It does not allege, that he failed to do this. The payee did not contract, so far as we are informed by the plea, to defend the sureties upon the bail-bond, against a suit by scire facias, growing out of Froman’s failure to make his appearance in court, according to the condition of the bond. The judgment is affirmed, and damages awarded for the delay.

Affirmed with damages.