JOHN McLAUGHLIN, CHAIRMAN, &c. TO THE USE OF JAMES STEPHENSON AND WIFE vs JOHN S. NEILL AND OTHERS.
June 1843
When an action is brought on an offioial bond, for the benefit of a person injured, in the name of the State or of the officer of the State to whom the bond is made payable, it is regarded as the action of the relator; and on his death is abated, as other actions abate by the death of the plaintiff, unless revived in the manner prescribed by law.
Executors or administrators of a plaintiff must, in general, apply to revive the suit within two terms after his death, computing from the day of his death and not from the time the suggestion is entered on the record.
Appeal from the Superior Court of Law of Iredell County, at Spring Term, 1843, his Honor Judge Dick presiding.
This was an action of debt, brought on the administration bond of the defendant, John S. Neill, to recovera distributive share of the estate of one deceased, to which distributive share the relator, James Stephenson, was entitled in right of his wife Nancy, the other relator.— The plaintiff’s counsel now alleged to the court, that the said Nancy was dead, and that administration on her estate had been granted to Noble M. Mills, by the County Court of Iredell, at February Term, 1843. The plaintiff’s counsel then moved that the said Noble M. Mills be made a party plaintiff to this suit. This motion was opposed by the defendant’s counsel, who alleged that the said suit had abated, because the said Nancy Stephenson died in October, 1841, and offered the affidavit of John S. Neill, one of the defendants, to establish that fact, The plaintiff’s counsel had not heretofore suggested the death of the said Nancy on the record, nor did he now offer any evidence to shew at what time she died. It was admitted, that the said James Stephenson and his wife had removed from this State before *295this suit was brought. The court being of opinion that said suit had abated, and, having directed an entry to that effect to be made on the record, the plaintiff, James Stephenson, prayed for and obtained an appeal to the Supreme Court.
No counsel for either party.
Gaston, J.
When an action is instituted upon an official bond, in the name ol the State or of the officer of the State to whom the bond was made payable, by a person alleging himself to have sustained injury by a breach of its stipulations, he is required to set forth in the declaration how he has sustained such injury, and is entitled after judgment to receive to his own use the money therein recovered. Rev. Stat. c. 81. Such action is therefore regarded as the action of the relator, and by his death it is abated, as other actions abate by the death of the plaintiff, 'unless revived in the manner prescribed by law. The general rule in regard to the revival of actions, where the plaintiff dies, is, that the cause will abate, unless the executors apply to carry it on within two terms after his death, computing from the day of his death, and not from the suggestion entered by the defendant. See Tay. 134, and 2 Hay. 66. There was nothing in this case alleged to take it without the operation of the general rule, or to bring it within the limits of any exception thereto ; and we therefore hold that the judgment of the court below was correct.
Per Curiam. Judgment affirmed.