Cheatham v. Boykin, 4 N.C. 238, 1 Taylor 238 (1817)

Jan. 1817 · Supreme Court of North Carolina

4 N.C. 238, 1 Taylor 238

CHEATHAM, ADMINISTRATOR of DELOACH against BOYKIN and HORRELL.

fcfmi given ** because bift onesec-i-fitj is g.ven ¡.n it. That one is net lesa bound than if two or more had been give*.

THIS was a scire facias sued opt on a refunding bond *nto Í" Boykin upon receiving a distributive share of 7. Boykin!s personal estate; Howell was the security in the bond, and the Plaintiff’s intestate was a .creditor of J. Boykin, against whose administrator he had obtained judgment; but the property having been all deb-vered over to the distributees, the proceeding on this bond, directed by the act of Assembly, was resorted fo. Judgment was rendered for the Plaintiffs on the sci. fa. on which- the Defendants filed these reasons in arrest.

1. That the refunding bond has but one security. 2. That the bond was filed and recorded three years after its execution, when by law it should have been filed at the succeeding term.

The capse was argued at Northampton Superior Court before Taylor C. J. who overruled the reasons in arrest.^*

The cause was submitted here without argument.

* The first reason was chiefly pressed in the Court below, on which the opinion there given was as iollows. Per Curiam—The act of 1789, c. 23> certainly requires the administrator to take a bond with two or more... ii’jSe sureties ; but that is for his own protection, and if he chuses to risk, it on one security as against creditors, that security has no cause of com-plsüit. 1 cannpi duLÍnguish &e case from the Sheriff’s taking one bail, which he may do if he picase; yet u. is ao objection in the mogth of the Bail.*

* Cro. Eliz 672, 808.

Seawell, J.

It is difficult to discover the principle upon which the Defendant’s objection rests ; the act of Assembly requires from the administrator that he should before delivering over the distributive share (and in like manner of executors as to legacies) take from the party a bond, with two or more able sureties to refund in case of debts. The administrator has taken the bond from the Defendant; but he objects to being bound thereby, because there was but one surety taken ; and I suppose if two had been taken he would then have said, he ought not to be bound, because they were not able. Whether the administrator could shelter himself from the claim of creditors by this bond, is another question: but as regards the Defendant, the administrator has not imposed upon him, any obligation unauthorized by law,nor has he taken any bon4 which the law forbids. Or. the contrary, he has taken the precise one required by law ? but has omitted to have it signed by as many persons as he was directed. In other words, he has done nothing which the law dicj not require ; but has not done all it required ; in point of law therefore the bond is not void ; and in reason and honesty there can, be no ground to impeach it. There ought therefore t^ be judgment for the Plaintiffs.

Hall, J. Daniel, J. and Ruffin, J. concurred.