#### *Hopkins’ adm’r. vs. Morgan.*

Debt..

Case 1

Eiror to the Muhlenburgh Circuit; Alney’ M’Lean, Judjge.

*Injunction bonds. Executors. Consideration.*

Injunction bond of Morgan’s executor and his security to Hopkins, and its condition.

April 14.

Judge Owsley

delivered the Opinion of the Court.

Charles Morgan, executor of Epps Littlepage, and John Morgan his surety, on 21st February, 1820, executed a bond, in which they acknowledged themselves indebted to John Hopkins in the penal sum of two hundred and thirty dollars, and bound themselves, their heirs &e. jointly and severally, to pay the same upon the following condition thereto subjoined: The condition of the above obligation is such, that whereas, the above bound Charles Morgan, executor as aforesaid, hath obtained an injunction staying all proceedings at law on a judgment and execution, obtained by said Hopkins against the said Morgan, • executor aforesaid, in the Muhlenburgh circuit court, for $112. 05, besides interest and cost. Now if the said Morgan, executor as aforesaid, shall pay and satisfy the amount, and all sums of money, tobacco and costs, that may be awarded against him, in case said injunction shall be discharged or dissolved, then the above obligation to be void, else to remain in full force and virtue.

*2Injunction dissolved,and action on the bond.

Pleas of defendant.

.Plea No.,1.

Ploa No. 2.

.Plea No. 3,

Demurrers to Ihe pleas, sustained by the circuit court.

Plea No. 4.

The injunction was afterwards dissolved, and the administrator of Hopkins, he having departed this life, brought this action upon the bond, against John Morgan, the executor, Charles Morgan also being dead.

The defendant pleaded several pleas: — I. That the plaintiff, his action to have and maintain, ought not,-because he says, that the said bond was executed without any legal, good or valuable consideration, in this, that the said Charles Morgan was exe.cutor of Epps Littlepage, and should not, by law, have been bound to answer the debt out of his own ..estate, and-this he is ready to verify, &c.

.II. And for further plea the defendant says, the plaintiff his action ought not have and maintain, because he says, said bond was given for the purpose •of obtaining an injunction from the Clerk’s office, &c. against a judgment rendered against the said Charles-Morgan, as executor of Epps Littlepage, .and for no other consideration whatever; and the condition of the bond imposes greater obligations on the said Charles than the law, for that purpose, •authoriezd and empowered the Clerk to impose, .and more extensive than the order of the Justices, ..directing the same to be taken authorized, and so he-says that the said bond is void in law, and was given for no good, legal, valid or valuable consideration whale ver, ,.&c.

III. And for further plea, the defendant says, the plaintiff his action ought not to have and maintain,, because' he says, that the said Charles Morgan has fully administered all the estate of the said Epps Littlepage, deceased, and this he is ready to verb fy, &c.

To each of.these pleas the plaintiff filed a demurrer? and the demurrers were sustained by the court*.*

The defendant then obtained leave of the .court, ancj gje(j an.additional plea in the following words; The defendant, for further plea in this behalf, savs, the plaintiff his action ought not -to have and maintain, because he says, that said bond was giyen for the purpose of obtaining an injunction from the *3Clerk’s office of this court, against á judgment reridered against the said Charles Morgan, as executor •of Epps Littlepage to he levied of the estate, goods and chattels of the said Littlepage, in said Morgan’s hands to be administered, and for no other or further consideration whatever; and the condition of said bond imposes greater obligations on the said Charles than the law, for that purpose authorized and empowered the Clerk to impose, and more extensive than! the order of the Justices, directing the same to be taken, authorized; and so he says, that the said bond is void in law, and was given for no good, legal, valid or valuable consideration whatever, and this he is ready to verify, &c.

Demurrers to fourth plea bar."

An injunction' bond with conditions more bum thensome on the obligors than required by law, or order of the court; is not void for that cause merely.

Query, of what is the proper condition of an injunction bonci in case of an executor complainant J

To this plea, also, the plaintiff demurred, and the demurrer was overruled, and judgment rendered in bar of the action. To reverse that judgment this writ of error is prosecuted by the administrator of Hopkins.

In reviewing the decisions of the circuit court, we deem it unnecessary to examine as to the description of bond required by law to be given by an executor., on obtaining an injunction against a judgment recovered against the estate of the testator in his hands to be administered. It is unnecessary, be- ■ cause neither of the pleas suggests any unfairness or artifice on the part of the Clerk in taking the bond, nor does either contain any averment going to shew that the import of the bond was not fully understood by the parties, or that it was executed through any mistaken conception whatever. We must, therefore, assume the fact to be, that with a knowledge of the import of the bond and condition, it was fairly and voluntarily executed by the executor and and his surety, for the purpose of enjoining and suspending the execution of the judgment, which the intestate, Hopkins, had recovered against the executor, Morgan., in his fiduciary capacity, and whatever may be the description of bond which is required by law, to be given by executors, on obtaining an injunction against such judgments, there is no pretext for saying that the bond which was executed, is without any valuable consideration, and? *4therefore, inoperative and void. Conceding, *(and*xve make the concession without intending to decide the point,) that the bond does not in every particular conform to the requisitions of the act of assembly directing the execution of injunction bonds, still the delay xvliich was produced by its *execution*in the proceedings on the judgment and execution! of Hopkins, of itself, formed a valuable consideration to upheld the bond, as a common, laxv obligation, and it has been repeatedly held by this court that injunction bonds, though not in strict conformity to the act of assembly upon the subject, will lie sustained, if good, at common law. •

In puoh caso, if the bond in its terms binds the principal obligor personBonally, neither the addition of executor to his name,nor the character of the case will screen him from personal liability;

The foregoing remarks are a sufficient response to the two first and the last pleas, and go to shew that the court decided correctly, in sustaining the plaintiff’s demurrer to the two first, but that the decision which overruled the demurrer to the last plea was erroneous. But it is proper to' bestow a separate consideration on the third plea,- which was adjudged bad by the court; The goodness of that plea turns upon the legal effect of the bond which was executed by Charles Morgan, the executor and his security, John Morgan, the defendant. If the bond imposes no personal obligation on the executor, and is c.onstrued tp be nothing more than an undertaking in his character of executor, to pay, in legal course of administration of assets, the judgment of Hopkins, in case of a dissolution of the injunction, it may be contended that the third plea which alleges the assets which came to the hands of the executor, to .have been fully administered, should have been sustained by the circuit court, as a valid plea.- But according to any rule of interpretation known to us,, wo cannot admit that the bond imposes no personal obligation .on the executory Morgan, and his sureties. The executor, it is true, describes himself as such, but his undertaking is personal, ex: pressly stipulating to pay the judgment &c. .in case the injunction should be dissolved. The naming himself as executor is but .a description of the per; son, and does not convert hys undertaking into an obligation to pay out of the estate of the testator. The bond is the foundation of the action, and wit *5are incapable of discerning how', after the death of the executor, any action could be maintatned upon the -bond,- against any administrator *de bonis*non, of the estate of Littlepage, that might be appointed. The third-plea was, therefore, correctly adjudged bad.

Fourth plea also adjudged 11 ‘

Held the í*0”'1 f|i<J not ebute per*' sonidiy, and *6that it was erroneously so declared on.

*5It was, however, errone'Ous to sustain the last plea, and render judgment in bar of the plaintiff’s action; that pleá we have already seen, contains no sufficient bar to the action. The judgment, must, tiQkrefore, in the opinion of a majority of the court, the Chief Justice dissenting, be reversed, with costs, the cause remanded *to the*court *below, and*such further proceedings there had, as may not be inconsistent with this opinion.

*The Chief Justice*

dissenting, *delivered Ms own*opinion, *as follows:*

Charles Morgan, as the executor of Epps Littlepage, deceased, with John Morgan, his security, entered into an injunction bond, to John Hopkins, in consequence of an order of injunction obtained by Morgan to enjoin a judgment against the said executor Morgan — the bond bears dajte 21st February, 1820: the injunction was- afterwards dissolved.

Hopkins sued upon this bond against Morgan, the surety, (the executor being dead,) and treated the bond as if it were an obligation by Charles Morgan personally, and in his individual character. Morgan pleaded several pleas, to which the demurrer of plaintiff was sustained; the defendant filed another plea, in substance alleging that the clerk had taken the bond binding Morgan, the executor, farther and beyond the requisition of law, and the order for injunction, and, therefore, it was void. To this the plaintiff likewise demurred, but the court sustained the plea and gave judgment for the defendant.

Although upon the last plea the judgment should hot have been that it was a good plea, yet upon thé Whole record, I think the judgment for the defendant is correct. The bond upon its face is not the *6personal and individual bond of Charles Morgan, a'sf the declaration' supposes and declares. It is a bond by Morgan, the executor, in his fiduciary character; the penalty is so; the condition recites the whole cause of entering into t-hc bond, recites the judgment against the executor, and the order for the injunction, and then concludes, that if said Morgan, as executor, shall pay and satisfy such sums of money, costs, &c. as shall be awarded against him, in case tjje injunction should be discharged and dissolved,"then the obligation to be void. The declaration in treating this bond, not as a bond by the executor, in his fiduciary character, but as the personal obligation of Morgan, the executor, I think is wrong; so that the declaration attempts to convert the bond into what it is not, and assigns the breach, of the condition insufficiently.

Plea of fully administered held sufficient.

*Mayes,*for plaintiff; Triplett, for defendant.

The plea that Morgan, the executor, had fully administered all the estate of the said Epps Little-page deceased, to which the plaintiff demurred, is a proper defence to the bond, in my opinion.

I am for affirming the judgment, because right, on the demurrer, although not for the reasons given by the circuit court.