dissenting, delivered Ms own opinion, as follows:
Charles Morgan, as the executor of Epps Littlepage, deceased, with John Morgan, his security, entered into an injunction bond, to John Hopkins, in consequence of an order of injunction obtained by Morgan to enjoin a judgment against the said executor Morgan — the bond bears dajte 21st February, 1820: the injunction was- afterwards dissolved.
Hopkins sued upon this bond against Morgan, the surety, (the executor being dead,) and treated the bond as if it were an obligation by Charles Morgan personally, and in his individual character. Morgan pleaded several pleas, to which the demurrer of plaintiff was sustained; the defendant filed another plea, in substance alleging that the clerk had taken the bond binding Morgan, the executor, farther and beyond the requisition of law, and the order for injunction, and, therefore, it was void. To this the plaintiff likewise demurred, but the court sustained the plea and gave judgment for the defendant.
Although upon the last plea the judgment should hot have been that it was a good plea, yet upon thé Whole record, I think the judgment for the defendant is correct. The bond upon its face is not the *6personal and individual bond of Charles Morgan, a'sf the declaration' supposes and declares. It is a bond by Morgan, the executor, in his fiduciary character; the penalty is so; the condition recites the whole cause of entering into t-hc bond, recites the judgment against the executor, and the order for the injunction, and then concludes, that if said Morgan, as executor, shall pay and satisfy such sums of money, costs, &c. as shall be awarded against him, in case tjje injunction should be discharged and dissolved,"then the obligation to be void. The declaration in treating this bond, not as a bond by the executor, in his fiduciary character, but as the personal obligation of Morgan, the executor, I think is wrong; so that the declaration attempts to convert the bond into what it is not, and assigns the breach, of the condition insufficiently.
Plea of fully administered held sufficient. Mayes, for plaintiff; Triplett, for defendant.The plea that Morgan, the executor, had fully administered all the estate of the said Epps Little-page deceased, to which the plaintiff demurred, is a proper defence to the bond, in my opinion.
I am for affirming the judgment, because right, on the demurrer, although not for the reasons given by the circuit court.