
    C. Pitman, et al., v. George Watkin’s Adm’r.
    Appeal — Estoppel—Administrator.
    Where an appeal bond is executed to an administrator the appellant is estopped to question the fiduciary character of such administrator.
    Sureties on Appeal Bond.
    In a suit on an appeal bond it is not necessary to have a return of no property found against the principal, before being entitled to maintain an action on the bond against the sureties.
    APPEAL FROM LAUREL CIRCUIT COURT.
    June 4, 1878.
    
      
      Pearl & Ewell, for appellants.
    
    
      L. A. Byron, for appellee.
    
   Opinion by

Judge Cofer:

The appeal bond sued on was executed to the appellee as administrator of George Watkins, and having recognized the appellee as administrator and executed a bond to him as such, the appellants are estopped to question his fiduciary character; and it was not necessary to set out in the petition the facts showing his due appointment and qualification.

The petition >set forth the bond and the breach and was sufficient to entitle the appellee to a, judgment.

Counsel are mistaken in supposing that a return of “no property found” against the principal is necessary to entitle the appellee to maintain an action on the appeal bond. The covenant in the bond is that Pitman will satisfy and perform the judgment rendered on the appeal. Judgment was rendered in favor of the appellee and Pitman failed to discharge it at once, and in consequence of such failure the covenant in the bond was broken and a right of action accrued to the covenant.

The demurrer to the answer was properly sustained. Judgment affirmed. ■  