Luster v. Middlecoff

Baldwin, J. delivered the opinion of the Court. The Court is of opinion, that upon the face of the bill of the plaintiffs, and of the official bond of Jacob Carper, executor of John Middlecoff the elder, therewith exhibited, the defendant Dempsey must be regarded as one of the sureties in the said bond, he appearing to have executed the same, although his name is not therein mentioned as one of the obligors; and therefore that the Circuit court erred in sustaining the said Dempsey’s demurrer and dismissing the bill as to him, instead of overruling said demurrer, and requiring him to answer the bill, which error is to the prejudice of the appellant and of the appellees Pitzer and Robinson. And the Court is further of opinion that there is no other error in the decree of the Circuit court, unless it be in decreeing in favour of the children and heirs of John Middlecoff the younger and the children and heirs of George Middlecoff, instead of their personal representatives ; it being uncertain from the record whether the [57] said John Middlecoff the younger and George Middlecoff, sons and legatees of the said John Middlecoff the elder, died before or after the death of their father: and unless it be in the omission of the decree to state that the recovery in favour of Thomas J. and Harriet Middlecoff, infant children and heirs of the said John Middlecoff the younger, is by their guardian and nest friend: in regard to which alleged errors no action of this Court need be had, inasmuch as for the error above declared in sustaining the demurrer of said Dempsey, the decree must be reversed and the cause remanded to the Circuit court for further proceedings to be there had, and any such irregularities may be there corrected, after enquiry into the facts bearing thereupon. It is therefore adjudged, ordered and decreed, that so much of the said decree as sustains the demurrer of the said Dempsey and dismisses the bill of the plaintiffs as to him, be reversed and annulled, with costs to the appellant against the appellees who were plaintiffs, and said Dempsey. And it is further adjudged, ordered and decreed, that the said demurrer be overruled, and that the said Dempsey do answer the bill of the plaintiffs; and that the reports of the commissioner in regard to the matters of account be recommitted in order that the same may be reformed, in respect to any responsibility which may appear on the part of the said Dempsey or to any errors therein which may be shewn by him. And the cause is remanded to the Circuit court to be proceeded in as above indicated.