Jonathan Green's Adm'x v. James Gill, 1 Sneed 271

This is a motion for leave to withdraw the bond which was executed at the time this supersedeas issued, upon a suggestion that the bond was executed and filed, subject to the opinion of the court on a question which was to be made, “ whether executors or administrators were bound to give bond and security upon obtaining a supersedeas ?” The statute of 3 James 1, chap. 8, is, in effect, the same as that clause of the 13th

section of the act establishing the court of appeals, which directs that before a writ of error shall operate as a supersedeas, that bond to be approved by the clerk of the court shall be given in-the same manner as in the ease of appeals.

The construction given to that act of parliament is not to require bond and security of executors or administrators when they or either of them sue out a writ of error ; which construction seems to be founded in sound reason, as the demand is not on their persons but on the assets of the deceased; it would, therefore, be unjust and unreasonable that they should find sureties to pay the debt out of their own estates. Upon the same principle is the law founded that executors or administrators are not held to bail. Therefore, it is considered by the court, that leave be granted to withdraw the bond aforesaid.