McCay v. Devers

¶1By the Court.

¶2delivering the opinion.

¶3[1.] Is a defendant who is sued, individually, upon a contract which he himself has made with the plaintiff, entitled to appeal *185from a verdict rendered against him, without giving security, by proving that the contract on which the action was brought, was made for the benefit of the estate, which he represented as executor, and that he was authorized, by the will of his testator, to make such contracts ?

¶4By the Judiciary Act of 1799, executors and administrators are not required to give security upon entering an appeal. Prince, 426. In every case which may arise, we apprehend the true test to be this — will the judgment or decree affect only the assets of the decedent in the hands of the party ? If so, he is entitled to appeal, under the Statute, without giving security, otherwise, the appeal bond would bind him, personally, and render him liable beyond the assets.

¶5But where the judgment or decree may be personal, and a fortiori where it must be so, as in the present case, and for which he will be held responsible out of his own funds, whatever remedy over he may have at Law or in Equity against the estate, there is no more .reason for allowing him tire privilege of appealing, without security, than to allow it to any other person. The contract being made with him, personally, he must litigate all controversies arising out'of it, in the same capacity. The just rights of the adverse party requires this.

¶6Judgment affirmed.