People v. Judges of Monroe Common Pleas — 1 Wend. 29

Majority

p. 29

The People, on the relation of Jacob Spencer, vs. The Judges of Monroe Common Pleas.

Headnote

J^ristrators^" conditioned to mrat“ímight be rendered against the in testate, is had. An appeal

Motion for a mandamus in an appeal case. The relator obtained a judgment before a justice against E. F. Fellows, on the 15th March. On the 19th March the defendant died; and five days thereafter, the administrators of the defendant appealed and delivered a bond to the justice, conditioned that rr J . they would prosecute the appeal, and in case judgment was rendered in the court of common pleas against E. F. Fellows, that they would pay the same. On the coming in of the return, the relator moved to quash the appeal, which motion was refused by the common pleas.

S. Boughton, for relator.

C. M. Lee, contra.

By the Court,

The bond is wholly defective. Allowing that the administrators had the right to appeal, the bond should have been conditioned to pay such judgment as might be rendered against them as administrators, and not to pay such judgment as should be rendered against their intestate, a dead man, an event that could not happen.

Motion granted.