
    *Allen and Ervine v. Morgan’s Adm’r & als.
    July Term, 1851,
    Lewisburg.
    (Absent Cabbll, P„ and Daniei,, J.)
    Chancery Practice — Decree between Codefendants— Case at Bar. — In a bill by a creditor against an administrator and bis sureties, charging a devastavit by tbe administrator, and tbe liability of bis sureties for it tbougb some of tbe sureties insist in tbeir answer tbat under tbe circumstances one of the sureties is Hable to tbe others, if they are liable to tbe plaintiff, tbougb there is a decree for the plaintiff, and though it appears from the proofs that the devastavit was occasioned "by a payment of a debt of inferior dignity to the surety sought to be charged, yet it is not a proper case for a decree between the codefendants.
    This was a bill filed in the Circuit court of Botetourt county, by William Morgan against William A. Watson, administrator of Robert Tinsley, and his sureties in his official bond, among whom were Bernard Owen and the appellants James S. Allen and Robert Rrvine. The bill charged that the complainant had, in 1829, recovered a judgment against Robert Tinsley, in his lifetime, for 1055 dollars 96 cents, with interest from the 28th of January 1823, until paid. That Tinsley died in 1839. That a scire facias to revive the judgment against Watson the administrator, was issued in April 1839, and served upon him. That the administrator had been guilty of a devasta-vit in paying away the assets of his intestate’s estate. That Tinsley had in his lifetime executed a bond to the firm of Watson & Owens, of which firm the administrator was a partner, for the sum of 4721 dollars 57 cents; and they had, *after Tinsley’s death, assigned this bond to Bernard Owen, who brought suit upon it against the administrator; and that he, with the knowledge of the plaintiff’s judgment, had confessed a judgment for the amount of the bond, with interest, for the purpose of giving the assignee of Watson & Owens a preference over the other creditors of the estate. That upon this judgment execution was immediately issued, and was levied on the slaves of the intestate in the hands of the administrator, which were sold to the amount of 2378 dollars 37 cents.
    Watson answered, calling for proof of the plaintiff’s judgment against Tinsley, and denying notice of it. But the scire facias to revive the judgment seems to have been served upon him before the confession of judgment to Owen. The defendant also set up other grounds of defence, which it is not necessary to notice.
    Bernard Owen also answered, taking the same grounds of defence as Watson. The other sureties, Allen and Ervine, also answered, and insisted, that if the plaintiff’s judgment was entitled to priority over that of Owen, so that the application of the assets to the satisfaction of the latter was a devastavit, then that Owen should be held responsible personally to the creditors of Tinsley’s estate, before resort was had to the other sureties; because said Owen was one of Watson’s sureties, as administrator of Tinsley, and had no right to unite with him in the misapplication of the assets of the estate, and thereby to benefit himself by the injury of his co-sureties.
    The accounts of the administrator were referred to a commissioner, who, excluding the payment to Owen’s debt, reported a balance due to the estate, of 2728 dollars 51 cents, with interest on 2617 dollars 31 cents, a part thereof, from the 31st of December 1840 until paid.
    *The cause came on to be heard in April 1846, when the Court rendered a decree in favour of the plaintiff against the defendant Watson, and all his sureties. From this decree Allen and Ervine applied to this Court for an appeal, which was allowed.
    Michie, for the appellants, and Boyd, for the appellees,
    submitted the case upon notes. The questions were, 1st. Whether the Court below should have decreed between the co-defendants, without a cross bill. And 2d. Whether under any state of the pleadings, the other sureties of Watson were entitled to a decree over against Bernard Owen.
    
      
      jTroes Dahtel bad been counsel in other cases out of which this originated.
    
    
      
      Chancery Practice — Decree between Codefendants. —In Whitlock v. Gordon, 1 Va. Dec. 251, it is said: “In relation to decrees between codefendants, 1 understand the rule In Virginia to be the same as that laid down by Lords Eldon and Redesdade in the House of Lords in the case of Chanity v. Lord Dunsany, 2 Sch. and Lef. 689, that ‘whenever a case is made out between the defendants by evidence arising from the pleadings and proofs between the plaintiff and the defendants, a court of equity is entitled to make a decree between the defendants, and is bound to do so.’ McNiel v. Baird, 6 Munf. 316; Allen v. Morgan, 8 Grattan 60; Morris v. Terrell, 2 Rand. 6 ; Munday v. Vawter, 3 Grattan 518 ; Templeman v. Fauntleroy, 3 Rand. 131. There have been various cases decided in our court of appeals rejecting decrees between codefendants (and the case of Blair v. Thompson, etc., 11 Grattan 441, cited by the counsel of the appellants, is one of them), because the matter did not arise from the proceedings and proofs between the plaintilf and defendants. But none of them, I think, impugn the rule as above laid down that whenever a case does arise between the defendants upon such proceedings and proofs it is the right and duty of the court to decree between them, and make an end of the controversy, and save the necessity of other suits and further delay and expenses.”
      As to decrees between codefendants, the principal case was also cited in Blair v. Thompson, 11 Gratt. 450 ; Watson v. Wigginton, 28 W. Va. 569. For further information on this subject, see foot-note to Blair v. Thompson, 11 Gratt. 442; foot-note to Ould v. Myers, 23 Gratt. 384 ; foot-note to Glenn v. Clark, 21 Gratt. 35; monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
   ABREN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the only questions raised by the isstie between the complainants and defendants in the Court below, were the devastavit charged to have been committed by the administrator of Robert Tinsley, and the joint liability of his sureties in his official bond therefor; and that upon the case, as made out by the pleadings and proofs between the said complainants and defendants, no decree could have been properly rendered as between the co-defendants. The Court therefore, without deciding upon the equities of the co-defendants, as amongst themselves, is of opinion, that as between the complainants and defendants in the Court below, there is no error in the decree. It is therefore adjudged and ordered, that the same be affirmed with costs to the appellees.  