State ex rel. McNeal v. Bennett

Gregory, J.

Complaint on ¿n administrator’s bond, joint and several in its terms, on the relation of the heirs at law of one Norman McNeal, deceased. The bond was executed by one Angus McNeal, as the administrator of the estate of the said Norman, with one of the appellants, and three other persons, as his sureties. The suit is against Samuel Bennett, sen., an insane person, and his guardian. Angus McNeal died before the commencement of the action. The breach complained of is, that there came to the hands of Angus McNeal, as such administrator, assets of the value of $1,000, which he converted to his own use, and wholly failed to account for.

Demurrer to the complaint, because it does not state facts sufficient, and because there is a defect of parties defendants, in this, that all the parties to the bond sued on should be made parties defendants. The demurrer was sustained, and this presents the only question for our consideration. There is no brief on the part of the appellee, and we are not informed of the ground of the action of the court below.

The bond is joint and several, and, at common law, the obligee might sue one or all of the makers. "We do not think the statute changes the rule. 2 G. & H., § 20, p. 50.

The bond was executed in 1847, but the remedy must be sought under the law in force at the commencement of the action, unless the application of the new remedy to the contract would impair the obligation of the latter. The legislature, so far as the remedy is concerned, may validate, hut cannot invalidate the obligation of a contract.

The heirs at law may maintain this action. 2 G. & H., § 163, p. 529.

J. D. New and C. JEJ. Walker, for appellant.

The breach assigned is sufficient. The State v. Scott, 12 Ind. 529 .

The judgment is reversed, with costs, and the cause remanded to said court, with directions to overrule the demurrer to the complaint, and for further proceedings.