Lewis Ex Rel. Smith v. Fagan
Supreme Court of North Carolina
^•From Washing ton. Debt upon an administration bond, executed by the intestate of the Defendants, as the surety of one William B. Harramond, as administrator of one Benjamin Fes-senden.
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^•From Washing ton. Debt upon an administration bond, executed by the intestate of the Defendants, as the surety of one William B. Harramond, as administrator of one Benjamin Fes-senden. The breach assigned was, that Harramond had not paid a judgment, which the testator of the relator had obtained against both Fessenden and Harramond, in the lifetime of the former for $1350 50. After oyer, the Defendants pleaded, 1. Mon est factum testatoris. 2. Payment., 3. Set-off. 4. Performance of the condition of the bond by Harmmond, the administrator. 5. That the judgment against Harramond, as ad.…
1Opinion of the Court
Ruffin. Judge.
Several objections are made to the recovery effected in this case, none of which, I think, are tenable. The first, is, that there was no judgment against Harramond, as administrator of Fessenden; for that he was not sued on the judgment obtained against Fessenden in his lifetime, but only made a party to it by sd.fa. in which the judgment is, quod habeat eocecutionem, atul not quod recuperet. The answer is, that in effect it is precisely the same thing. For by a judgment of recovery, what is recovered but the debt, to be levied of the goods of the intestate in the hands of the…
2Cited by4 opinions
- Parker v. . StephensSuperior Court of North Carolina · 1795
- Brown v. . ClarySuperior Court of North Carolina · 1794
- Davis v. . WilkinsonSuperior Court of North Carolina · 1796
- Kelly v. . MuseSupreme Court of North Carolina · 1850