Sumner v. . Whedbee , 14 N.C. 84 ( 1831 )

Ham, Judge-

It does not appear to me, that the suit brought by the legatee of Granbnnj Button against James Sumner's executors, which was decided against-the plaintiif, was any breach of. the condition of the bond, on which the present suit is brought. The condition is, that “ the plaintiff’s testator should be released, exone-. rated and (iischarged, in every manner and form, from the executorship of Granbury Sutton, deceased, in as. full and ample a manner, as if he had never qualified-thereto.5’ I should not think that a breach of th&txon-dition would be committed, if a third person should bring x ° a wrongful action against James Sumner, as executor of Sutton, and have the suit decided against him but that the condition was only intended to protect the executor, James, against any recoveries which might be made against him. It is unnecessary, however, to decide this part.of the case. The parties seem to have given it a more liberal construction; because it appears, that the costs of the suit of the legatee against Jumes Sumner’s executor, were-paid by the defendant in the present suit. And how that happened does not appear.; as that suit was dismissed at the plaintiff’s costs. Ee that as it may, the present suit is brought for two hundred and fifteen dollars, extra fees, paid to counsel by the defendant in the same suit. My* according to • the construction - which the parties seem to have given to the condition of the bond, the condition extended to wrongful suits which, might he brought against the executor, and also to costs which he might be bound to pay, it surely cannot extend to voluntary costs of bis own creating. When the defendant in this suit paid the legal costs, he went as lhr, as by any fair construction of the condition of the bond,. he was bound to go.

Piitt CuSIAM. — JüHOMENT REVERSED;