State Ex Rel. Bond v. Billups

53 N.C. 423 | N.C. | 1862

The action was originally brought in the county court, and the writ was taken out against the defendant Billups, and the sureties to the administration bond, but the records states that only the (424) defendant came and pleaded and he only appeared to the Superior Court.

The plaintiff offered in evidence a judgment which had been recovered against the defendant as administrator of one T. Billups at May Term, 1860, of Perquimans County court, the nonpayment of which judgment was the breach of the bond declared on.

The defendant pleaded fully administered and no assets at the time of the original judgment and fully administered and no assets in this suit. And on the trial he offered to show that at the time of the judgment in the county court, at May Term, 1860, he had paid all the assets of his testator upon debts of equal dignity with that of plaintiff, and, further, he offered to show that he had no assets of his testator at the time of the commencement of this suit. His Honor excluded the evidence, and the defendant's counsel excepted.

Verdict and judgment for plaintiff, and appeal by the defendant. Armistead v. Harramond, 11 N.C. 339, is direct authority in support of the opinion expressed by his Honor in the court below. That was a suit upon an administration bond against the administrator and his sureties, and although it was held that a previous judgment against the administrator in which he was fixed with assets was not evidence against his sureties as to the assets, yet it was evidence against him both as to the debt and assets. That the judgment against the administrator is conclusive appears as well from that case as from the recent one of Strickland v. Murphy, 52 N.C. 242. Whether it was so as against the sureties we need not inquire, for in the case now before us they were not parties to the record in the Superior Court. It is true that in the county court the writ had been (425) issued against and served upon them, but they did not appear and plead, and the judgment in that court was rendered against the administrator alone, from which he appealed, and was of course the only party defendant to the record in the Superior Court. The evidence which he offered for the purpose of showing that at the time of the previous judgment against him he had fully administered all the assets which had come into his hands was, therefore, properly rejected, and the judgment must be affirmed.

PER CURIAM. No error.

Cited: Brown v. Pike, 74 N.C. 534.

Modified: Badger v. Daniel, 79 N.C. 387.