
    Nelson vs Tyler.
    
      January 6.
    Error to the Fulton Circuit.
    f>EBT.
    
      Case 32.
    The cess stated* and pleadings.
    
      Administrators, Appeal Bonds. Pleading.
    
   Judge Gbaham

delivered the opinion of the Court.

This is an action of debt brought by Nelson upon art appeal bond in the penalty of eight hundred dollars* executed by Austin S. Tyler and the defendant James P. Tyler. The condition shows that said Austin S. Tyler ás administrator of Labourn Combs, deceased, “has obtained an appeal from the judgment of the Fub ton Crrc'uit rendered in an action therein in favor of said Nel'són against said Tyler, administrator as aforesaid,” and stipulates that the bond shall be void if said Austin S. Tyler administrator as aforesaid, shall duly prosecute the said appeal and with effect, or shall weli atíd truly satisfy and pay said Nelson the amount of his judgment with 'interest and costs, and all costs and damages which may be awarded to or sustained by said Nelson in case the said judgment is affirmed in whole or in part, or said appea.1 be dismissed or discontinued. The declaration then avers that the judgment, appealed from was affirmed by the Court of Appeals, and that neither of the obligors have paid $300, the amount of the judgment, nor the interest, nor the sum of $20, the costs of the suit at law, nor $50 the plaintiffs costs in the Court of Appeals, nor $45 52 the damages adjudged to him by reason of said appeal, nor have either of them paid any part of said sums.

The defendant after having oyer of the bond and the condition and of the judgment mentioned in the bond, plead in bar of the action in substance, that the judgment was against said Austin S. Tyler as administrator of Combs, that the bond was entered into by said Austin S., as administrator with the defendant as his surety and that no assets of the decedent’s estate have ever come to the hands of said administrator 1o be administered. To this plea the plaintiff demurred. The Court overruled the demurrer, and the plaintiff electing to stand by his demurrer, the Court gave judgment for the defendant for his costs against the plaintiff, who has -by writ of error brought the case to this Court for revision. The only thing to be inquired into, is the sufficiency of the matter alleged in the plea to bar the plaintiff’s right of action. . By the act of 1812, 1 vol. M. & B. digest laws of Ky., 675, it is enacted that ainy bond thereafter executed by an administrator or executor to make a writ of error a supersedeas or upon an appeal, shall not make the executor or, administrator liable out of his own estate, any further than for costs upon a deficiency of assets; “and the officer taking any' such bond shall prepare the same accordingly.” The bond which the administrator has executed in this case was not prepared according to the act of assembly-above referred to; the obligation to pay- the penalty is personal on the obligors, but the condition annexed to-the penalty shows that in executing the bond the obligors had no other object than to suspend by- appeal the operation of a judgment which had been obtained against Austin S. Tyler as administrator of the estate of Combs, deceased, to be paid out of the assets in his-hands as such administrator. This case is very much-like that of Mahan vs Tydings (10 B. Monroe, 358,) which was the case of an injunction bond executed by an administrator. There it was settled that as the bond was not a private instrument executed between party and party, each having an equal right to prescribe its terms and control its language, but was an in strument drawn up for a particular purpose by a public officer, under the command of the law and executed by the paities, it should be so construed as to accomplish its proposed objects under the law. The case before us is as to every thing but costs, a stronger case for the defendants than was that of Mahan against Tydings, for the objects of the law proposed to be accomplished by the execution of the injunction bond, controlled the Court in the exposition of the effect which ought to be given to it, whilst here there is an act of the legislature expressly enacting that no bond executed upon an appeal or supersedeas by an executor or administrator shall bind the obligors as to any thing but costs, beyond the assets in his hands.

Upon appeal bond given by executors & administrators since the act of 1812: (1 Stal. Liw, 675) they are not individually bound beyond assets for anything but costs.

B. Monroe for plaintiff; Husbands for defendant.

If the defendant in this case had not by his plea attempted to defeat the plaintiff’s -action entirely, but had plead actio non as to all but the costs, his plea would under the statute recited, have been unquestionably good; but in attempting to bar the plaintiff from recovering the costs on the appeal it has gone too far, and for that cause only the demurrer to it ought to have been sustained.

For this error, the judgment of the Circuit Court is reversed and the cause is remanded with directions to set aside the judgment, sustain the plaintiff’s demurrer to the defendant’s plea, and give the defendant if he shall ask it, leave to amend his plea' or file additional pleas,,and for other proceedings not inconsistent with this opinion.  