Archer, Blatch v., Arnham, Cook v., v. Rowe, Atkinson, Grayson v., Bagshaw v. Spencer, Baker's case. Baker, Squire v., Banks, Mills v., Lea v., Barry, Stokes v., 441 Curwen v. Fletcher, Davis v. Topp, 570 Darwent v. Walton. 543 Desbouvrie, Pusey v., 169 Doe, Lessee of Bowerman, 27 Donne v. Lewis, 348 Edwards v. Carrol, 166, 167, 169, 173 Evans v. Llewellyn, 274 512, 513 Fanshaw, Cocksedge v., 412, 418 Fell v. Brown, 403 444 Lee v. Alston, 573 Leneve v. Leneve, v. Pead, Applebury & others v. An 453 Cooth v. Jackson, thony's Ex'rs, 103 Jones v. Jones, 569, 574 v. Roe, Lessee of Perry, 356 V.. 305, 384 v. Stanley, 307 273 Kemp v. Squire, 348 43 497 505 542, 543 Knight's case, 263 525 513 v. Bishop of Winchester v., 104 v. Knight, Knowler, Powell v., 309 305 381 Lamas v. Bayly, 512, 513 441 Lane v. Dighton, 513 453 Wheatly v.. 14 43 Lansdown v. Lansdown, 526 345, 357 Law. Jenkins v., 28 115 Layner, Steed v., 12 418 Lea v. Barber, 516 104 298 441 Beachcroft v. Beachcroft, Blake, Woodman v., Bodington, Wilker v., Boyer, Weymouth v., Brace, Pennoir v., Brady v. Cubitt, Brandon v. Sands, Bridge. Syers v.. 517 Filmer v. Gott, 306. 315 Fitzroy, Osmond v., 525, 571, 572 Forth v. Chapman, Bucks (Duke of), Philips v., 408 Fremoult v. Dedire, 306 Galton v. Hancock. 274 Gartside v. Isherwood, 539, 547 Gawler v. Wade. Budgin & Wife, Christ's Hospi tal v.. Burt, Clifton v., Calvin's case. Cannel v. Buckle. 316 Geach v. Barber, 307 Lexington (Lord) v. Clarke, 525, 573 Llewellyn, Evans v., 573 Loker v. Rolle, 285 Long's case, 618 Loveacres v. Blight, 188 Lowndes v. Lewis, 203, 551 Loxdale, Rex v., 316 Mara v. Quinn, 441 Martin v. Ford, 525, 575 Martyn, Cook v., 504 Germain, Lord Peterborough 453 Gibson, Cole v., Rich. 381 Grayson v. Atkinson. 105 Greenhill v. Greenhill, 570 Greenside v. Benson. Guyon, Townson v.. 611, &c. Canterbury (Archbishop of) v. Carrol, Edwards v., Cart v. Rees, Caryll, Hayes v., Chapman, Forth v., Charnock. Thompson v., Chater v. Becket, Chaurand v. Angerstein, Chesterfield v. Janssen, 305, Christ's Hospital v. Budgin Clarke, Lord Lexington v., v. Periam, v. Sampson, Clarke v. Turton, Wride v.. Clarkson v. Hanway, Clason v. Simmonds, Clay, Smith v.. Clerk v. Withers, Clifton v. Burt. Cocking v. Pratt, Cocksedge v. Fanshaw, Cole v. Davies, v. Gibson. Coles v. Trecothick, 383 192 Mildmay v. Smith, 18. 19 Mudge v. Blight, 413 Newman v. Newman, (Duke of) & Wife v. Lord 203, 551 28 Haworth, Beatson v., 570 Heathcote v. Paignon, & 384 Hobbs v. Norton, Norton, Hobbs v., 573 Nutt, Wright v., 13 Ormston v. Hamilton, 525, 572, 574 Osmond v. Fitzroy, 308 Paignon. Heathcote v., 525, 573, 574 525, 573, 574 Pembroke 525, 574 Currier, Penn, Fry v., 539, 540. 541, 542, 543, 548 v. Phelips, Peterborough (Lord) v. Germain, 574 575 539 (Viscountess) V. 403 104 539. 574 Pennoir v. Brace, 272 552 453 Periam, Clarke v., 575 305, 384 384 192 444 14 348 Phelips, Perry v., 384 525 Philips v. Duke of Bucks, 497 274 Pickerell. Aggas v., 524 525, 574 Piers v. Piers, 103 189 28 Plummer, Collins v., 306 479 Popham, Bampfield v., 192 574 Huxlop v. Brooman, 539 Porter's case, 109 570 Ibbetson v. Beckwith, 543 Porter, Senat v., 412 441 Hogg, The King v.. 525, 572, 574 Holman & Robins, Taylor v., 418 Hopkins, Bond v., 345 Horne v. Meers, 274 Horner v. Battyn. 441 Horwood, Underhill v.. 505 Peters, Erving v., 573 Hunter. Gibson & Johnson v., 27, 29 Pitt. Rex v.. 27 Hurd, Owen v., 273 Hurst's case. CASES ARGUED AND DETERMINED IN THE Supreme Court of Appeals of Virginia, AT THE TERM COMMENCING IN MARCH, 1810. IN THE THIRTY-FOURTH YEAR OF THE COMMONWEALTH. JUDGES, WILLIAM FLEMING, ESQUIRE, Pres't. SPENCER ROANE, Esquire. PHILIP NORBORNE NICHOLAS, Esquire. Gordon's Administrators v. The Justices of a creditor, and must prove by an action Frederick. Argued at the October Term, 1809. Administration Bond-Action on-What Necessary to Sustain.*-It is necessary, after a judgment against an executor or administrator, as such, to establish a devastavit, by means of a second suit, before an action can be maintained on the admin istration bond. 2 of against the executor and the verdict of a Jury, that he had committed a devasta vit,' before an action could be maintained on the administration bond, was, under the actual case then before the Court, to be understood as requiring an action debts suggesting a devastavit, before an action could be maintained against the securities of the executor or administrator: in short, whether three suits were necessary; 1st. A suit against the executor or administrator, as such, to establish the amount of the debt due from the testator or intestate; 2dly. A suit against the execua distinction between the "want of right" to bring an action on an administration bond and the "want of evidence" to make out the case and remarks that the cases of Braxton v. Winslow, 1 Wash. 31, Gordon v. Frederick Justices, 1 Munf. 1, and Catlett v. Carter, 2 Munf. 24, "went off" on the ground of a "want of evidence" to make out the case. In this case, the decision of the Court, in Braxton v. Winslow, (1 Wash. 31,) was reviewed; doubts having been entertained whether the position there laid down, "that the plaintiff must shew, by an action brought against the executor, that he was *Administration Bond-Action on-What Necessary to Sustain. The headnote to Meade v. Brooking, 3 Munf. 548, reads, "After a judgment against an executor or administrator as such, a fieri facias and return of nulla bona, an action against him alone, on his administration bond could always be maintained without any previous suit suggesting a devastavit." In a note to this case, reference is made to the principal case and Sess. Acts of 1813, p. 40, ch. 13. In this case the court, speaking through the president, said, "It has been settled by a variety of decisions of this court, that securities in an executor's or administration bond cannot be charged for the misconduct or maladministration of their principal, (even where he is made a party to the action) before he be charged by a suit, and a devastavit estab-pended to Sangster v. Com., 17 Gratt. 121. lished against him: but this court has never gone so far as to make that a necessary previous step, where the principal alone is sued on an executor's or administration bond; because in such an action, he has a fair opportunity of making a full defence. by pleading and proving that he has fairly and fully administered the estate." In support of the rule that a judgment against an executor is necessary before a suit can be brought upon his administration bond, see the cases cited in foot-note to Call v. Ruffin, 1 Call 333. For a collection of cases upholding the proposition referred to in the quotation above-that, although a creditor may sue the executor or administrator on his bond for a devastavit, he must first fix such devastavit against the executor or administrator before he can go against the sureties-see foot-note to Braxton v. Winslow, 1 Wash. 31. The principal case is also cited in Spottswood v. Dandridge, 4 Munf. 294, 298, where the court draws See further on this subject, monographic note on "Executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6, where the question is discussed at some length and the late statutes of Virginia and West Virginia are set forth in substance: monographic note on "Official Bonds" ap Executors-Devastavit-Proof of.-To the point that no less proof than the verdict of a jury is sufficient to convict an executor or administrator of a devastavit, the principal case is cited with approval in Catlett v. Carter, 2 Munf. 30, the court saying that the decision of the principal case was founded on principles laid down in the case of Call v. Ruffin, 1 Call 333. But the sureties on an administration bond are not concluded by a verdict and judgment against the administrator or executor. In Henrico Justices v. Turner, 6 Leigh 127, it is said that JUDGE TUCKER admits this proposition to be true in Virginia. See further, monographic note on "Executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6. tor or administrator, suggesting a devas- shewing in evidence, in such action, a tavit, and a verdict and judgment therein for the plaintiff; and, 3dly. An action on the administration bond. judgment in an action of devastavit against the administrators." On such a verdict, every fact or circumstance, which (indeThis was an action of debt brought in pendently of the implied finding that no the County Court, in the name of the Jus- judgment had been obtained in an action tices of Frederick, at the instance of N. of devastavit) could justify a decision in Cartmill, against the administrators of favor of the plaintiff, must be understood Gordon and their securities, in the admin- to have been proved to the Jury. (d) We istration bond. The pleadings disclosed a have, therefore, a right to presume that, former judgment recovered by the relator in the original suit brought to establish (Cartmill) against the administrators, on the debt, a verdict was found against the the pleas of payment, and fully adminis- defendant on an issue joined on the plea tered; but it did not appear that there had of been any intermediate suit fixing a devastavit. The Jury found a verdict for the plaintiff, subject to the opinion of the Court, "whether an action on the administration bond could be maintained, without shewing in evidence, in such action, a judgment in an action of devastavit against the administrators." The County Court gave judgment for the defendants, which, on appeal to the District Court, was reversed; and from that judgment of reversal, the defendants (the administrators and their securities) appealed to this Court. 4 plene administravit, by which verdict it was ascertained, that he *had assets sufficient to satisfy the plaintiff's claim; that (judgment being entered accordingly) a writ of fieri facias issued, and was returned nulla bona. The question propounded by the Jury to the Court was, whether, after all this had been done, it was necessary for the plaintiff to obtain another judgment, in an action suggesting a devastavit, before he could bring suit on the administration bond? On which question, I contend, the decision of the County Court was erroneous. Williams, for the appellants, relied on the The devastavit was sufficiently fixed by case of Braxton v. Winslow, (1 Wash. 31, the proceedings in the first action; so far, recognised in Call v. Ruffin, (1 Call, 333,) indeed, that the sheriff, instead of returnas having settled the point, that an action ing nulla bona, might have returned a devcannot be sustained on an administration astavit positively; in which case, "the bond without a previous suit, fixing a plaintiff` might have had execution immedevastavit, against the executor or admin-diately against the defendant by capias ad istrator. By a note to Turner v. Chinn, (a) | satisfaciendum, or fieri facias de bonis it appears, that the Judges consented to propriis."(e) The Sheriff having neglected reconsider the case of Braxton v. Winslow; to do this, the plaintiff's remedy, in Engbut no opinion was expressed on the *point. The question is, therefore, not influenced by what fell from the bench in the last-mentioned case. 3 But an additional reason may be given why a previous suit is necessary against the executor or administrator, to establish a devastavit, before an action is brought against the securities. The law declares, that no security for an executor or administrator shall be chargeable beyond the assets of the testator or intestate, on account of any omission or mistake in pleading, of the executor or administrator. (b) It is, therefore, reasonable, that the amount of assets, wasted by the executor or administrator, should be ascertained by the verdict of a jury, before the securities are called land, would have been by scire fieri inquiry, or action of debt upon the judgment suggesting a devastavit," (f) it being very questionable whether, in that country, an action can be brought against an administrator on the administration bond, assigning a devastavit as the breach of the condition; (g) and it being certain that no bond and security is there required of an executor. The not exhibiting a true inventory or account, it seems, may be assigned as a breach; (h) and in the case of The Archbishop of Canterbury v. Willis, 1 Salk. 251, pl. 3, cited in 2 Bac. Abr. p. 409, Dublin edit. (i) a suit was maintained on the bond, at the instance of a creditor, who assigned as a breach the failing to pay him his debt. But, whether the lastmentioned action could have been supported, if the defendant had made a proper defence, is doubtful, the authorities being contradictory. (k) In this country, the proper remedy appears to be an action on the bond, which our act of Assembly directs to be given by executors as well as administrators; the object of that act appearing to be to substitute the action on the bond for debt suggesting a devastavit; since both, 5 successively, *in the same case, evidently superfluous. The bond may be put in suit for the benefit of any person injured; the devastavit may be assigned (d) Ford v. Gardner, 1 Hen. & Munf. 72. (e) Tidd's Prac. 933. (f) Ibid. 1019, 1020. (g) Toller's Law of Executors, 382. (h) Ibid. (i) Title Executors, &c. (E. 11.) (k) See the cases cited in Toller, p. 382. are |