Rutherford County NcArchives Court.....Lemuel Durham Et Al, Jacob Carroll, Adm'r Of George Reynolds V. 1840
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File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a December 26, 2011, 7:21 pm

Source: N C Reports
Written: 1840

Jacob Carroll, Adm'r of George Reynolds v. Lemuel Durham et al

If one of two obligors in a bond administer upon the estate of the obligee, he 
cannot maintain an action on the bond against the other obligors; and though 
the action is only suspended during the life of the administrator, and may be 
brought by the administrator de bonis non of the intestate, yet the defense is 
properly upon a plea in bar, instead of a plea in abatement.

This was an action of Debt, on a bond, brought by Jacob Carroll as 
administrator of George Reynolds, deceased, against Lemuel Durham and Benjamin 
Durham. The bond was given by Jacob Carroll, (the present plaintiff) and the 
two Durhams to Jesse Reynolds, by whom it was endorsed to George Reynolds, who 
died intestate. The plaintiff took administration of his estate, returned the 
bond in his inventory, and then brought this action. The defendants pleaded 
several pleas in bar; and amongst them, they specially pleaded the above 
facts. 

At the trial, on the last circuit at Rutherford, before his honor Judge Hall, 
the facts appearing on the evidence to be true, the plaintiff was nonsuited, 
and appealed.

Iredell for plaintiff
No counsel appeared for the defendants in this court

NC Supreme Court Chief Justice Ruffin - after stating the case as above 
proceeded as follows: There is precise authority very ancient, and also 
modern, that this action would not lie, if the plaintiff were executor, 
instead of being administrator. There was an effort to sustain the action, 
upon the distinction between a joint bond, and one joint and several; and upon 
the difference between a release by deed, and one by operation of law. (see 
court case for judge's full findings)

Per Curiam
Judgment Affirmed

Additional Comments:
In the NC Supreme Court June Term 1840

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