The action was brought upon the penal bond of the defendant, with condition to return in good repair at the expiration of his lease a certain farm belonging to the estate of Titus Darden, deceased, and to pay the rent of the same to the plaintiff as executor of the said Titus Darden. The bond was delivered by the plaintiff to one Jesse Darden, upon his (Jesse Darden's) appointment by the county court of Hertford to be guardian to the children of Titus Darden, and before the commencement of this action. The breach assigned was that the fences on the premises were not in the order required. The bond was offered in evidence and objected to on the ground that it was payable to the plaintiff as executor; etc., whereas the bond described in the pleadings did not appear to be payable to him in that capacity. This objection was overruled and the instrument admitted.
In the course of the trial the plaintiff offered the guardian of the children of the said Darden as a witness, who stated that this suit was brought for the benefit of his wards, and, if it should be (262) determined against the plaintiff, he (the witness) expected to pay the cost out of the income of the children. This witness was objected to on the ground of interest, but the objection was overruled. The jury found a verdict for the plaintiff. A new trial having been moved for and refused, and judgment being rendered pursuant to the verdict, the defendant appealed. The defendant executed to the plaintiff, "executor of Titus Darden, deceased," the bond declared on. The bond was conditioned, at the expiration of the term, to return in good repair the farm belonging to theheirs of Titus Darden, which farm the defendant had leased for a term of years. The damages to be recovered on a breach of the conditions of this bond could not in any way be made the personal assets of the testator. The obligee being described in the bond "executor of Titus Darden" does not in law compel him to sue as executor. The *Page 186 words are but surplusage; and he may and ought to sue in his own name, as on a bond in which he has the legal title. The plaintiff placed his bond in the hands of the guardian, because, in equity, the heirs of Darden had a right to all the benefit arising under it.
Secondly, the guardian was not a party to the record in this suit, and was not personally interested in the event of the suit. He had no interest in the damages or in the record. The circumstance that the guardian felt himself bound to pay the costs out of the funds of his wards, if the defendant should prevail and have judgment to recover his costs, did not disqualify him from being a witness.
PER CURIAM. No error.
Cited: Savage v. Carter, 64 N.C. 197.
(263)