Elliott v. White

The opinion of the court was delivered by Martin, J. The defendant and appellant complains of a judgment rendered against them, as surety of' a former curator of the estate of Foote, in favor of the present. 1. His counsel has urged that the District Court was without jurisdiction, and he was suable in the Court of Probates only. 2. A suit was actually pending in the Court of Probates against him on the bond. 3. The bond was given to the judge of Probates, and was never endorsed or assigned. 4. His principal was never called on to account, and was never put in mora. \ - The surety of a curator of absent hcirs.may iw sued on the bond mute DTheCtrepresCT-in whSe°benefitf0a the”judgeSom-o-trusSc,“cai/'SIe on the bond without an assignment The counsel has not alleged, and we are unacquainted with any law, which takes a case like the present, from the jurisdiction of the ordinary tribunals. The Court of Probates is one of limited jurisdiction, which cannot be extended to any case not especially placed within its attribution. ° The present plaintiff is not a party to the suit depending r r s: a r o the Court of Probates. 3. The suit is brought by the curator who represents the creditors and heirs, for whom the judge of Probates, as the counsel took the bonds, and the curator who represents them, 7 .. . ,, . . may sue on the bona, m the same manner as a principal can bring an action on a contract made for him by his agent. 4. The bond is conditioned for the due and faithful administration of the estate. The breach it assigned, is a failure therein, it became the duty of the defendant, to show a due and faithful administration of the estate by his principal. All these exceptions were properly overruled in the District Court. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be, affirmed, with costs in both courts.