
    The Ordinary of Charleston vs. Benjamin F. Hunt. The Same vs. William Swift.
    A creditor may sue upon an administration bond, without citing the administrator to account before the Ordinary, or obtaining a decree against him.
    In such case, it is necessary to show, that the demand has been established against the estate ; and that assets came to the hands of the administrator sufficient to pay it, which have been wasted or misapplied.
    A j udgment at law against the administrator for the original demand, with a return of nulla bona on execution, together with proceedings in Equity, to which the administrator was a party, and by which it appeared that assets had come to his hands sufficient to pay the demand, but which he had applied to the payment of debts of inferior degree, are sufficient to entitle the creditor to recover from the securities.
    Before Earle, J., at Charleston, May Term, 1839.
    This was an action of debt upon an administration bond, against the defendants, as securities of William T. Raynal, who was the administrator of William Rouse, deceased. Plea, performance.
    After proof of the bond a judgment was offered in evidence, in favor of Sanders Glover, (for whom this action was brought,) against Raynal, as administrator of Rouse, signed 11 February, 1832, on which an execution had been returned nulla bona. Certain proceedings in equity were then introduced, consisting of a bill, filed by the heirs at law of William Rouse, against Raynal, for a partition of the real and an account of the personal estate; the answer of Raynal, and the subsequent reports and orders. Among these was a decretal order of 22d May, 1830, directing a sale of the real estate, and an account of the personal estate. The commissioner was directed to take an account of the debts of the intestate, which should be rendered within a year, and after making provisions for the payment of them, to report the amount in the hands of the administrator for distribution. On 21st May, 1831, he reported the sale of the real estate, and that the personal assets amounted to the sum of $4230 50, *and the disbursements to $3218 48, leaving a small balance in the hands of the administrator ; that from the sales of the real estate, he had retained, to pay debts, the amount of $3766,67, that sum being regarded by the administrator, and the other distributees, as fully adequate to meet them. On the 7th May, 1832, the commissioner made an additional report, that bond debts had been established against the estate of Rouse, to the amonnt of $5349 54 ; that the amount retained to meet them, with the interest accrued, was $4224 50, leaving a deficiency of funds of $1125 ; that the debts paid by the administrator out of the personal assets, were all simple contracted debts, and that he had due notice of the bond debts. It was in evidence that written notice of Glover’s debts was given to the administrator, on 27th January, 1830, at which time his own return exhibited assets in his hands, to the amount of $3000, which he proceeded to pay over to simple contract debts. These reports were confirmed, and under the several orders made in the cause, the commissioner distributed the fund retained out of the sale of the real estate, among the bond creditors, of whom Glover was one, and when the fund was exhausted, there remained due to him a balance of $818 60, for which, with interest, this action was brought against the securities, Raynal having left the State in 1834.
    A motion for a nonsuit, on several grounds, was overruled, and the plaintiff had a verdict, which the defendants now moved to set aside, and renewed their motion for a nonsuit, mainly on the grounds taken below, —that the administrator was not cited to account before the Ordinary, and there was no decree against him, either by the court of Ordinary, or the court of Equity, to entitle the plaintiff to recover against the securities. It was likewise urged, that there was no sufficient evidence of a devastavit, as the administrator had applied the personal assets to the payment of debts, although of inferior degree; and the court of Equity having undertaken to make provision for the payment of the bond debts out of the real estate, it was the fault or laches of the plaintiff, that he did not secure his debt; and the securities of the administrator were no further liable.
   Curia, per

Earle, J.

From the number of cases in our *books of reports, arising out of the liability of administrators and their securities, one would suppose that a new point could hardly arise. Yet I think there are some errors prevailing among the profession on this subject, as I think there are some ill-considered dieta scattered through the cases. One of these is, that no action at all can be maintained on the administration bond, against the securities, until the administrator has been cited before the Ordinary to account, and there has been a decree against him. A creditor of the estate has no claim to go before the Ordinary for an account; nor has the Ordinary any jurisdiction to decree the payment of his debt, or to make any decree that would avail him in the collection of it. When the suit on the bond is for the heirs at law or distributees, an account before some tribunal is necessary, in order to ascertain for what sum, after the payment of debts, the administrator is liable. A creditor suing on the bond, has only to establish his debt against the estate of the intestate, and show that assets have come to the hands of the administrator, sufficient to pay it, which have been misapplied. The conclusion of the Court, in the Ordinary vs. Jones, (4 McC. 113,) is, that “ no action should be had upon the bond, until by a proper course of proceeding, the claim of the creditor be established, and it be ascertained that there are assets sufficient to pay his demand, or a devas-tavit be clearly and formally established against the administrator.”

The evidence in the case before us, comes up to the requisition of the rule thus laid down. The demand of the creditor was established against the estate of Rouse, in the action at law against the administrator, in which there was a verdict for the plaintiff, after full defence, and on full proof. Had the plaintiff proceeded to suggest a devastavit, and furnished the evidence which was produced in Equity, or exhibited the proceedings, he must have had judgment de bonis propriis against the administrator, which would have fixed the securities, in a subsequent action against themselves. And it seems to me, that the only inquiry to be made is, whether the proceedings in Equity furnish sufficient evidence, that on accounting, under the decree of that court, for the personal estate, the administrator had assets to pay the demand claimed of him, and that he wasted them or misapplied them. The suit there was instituted by the heirs at law, for partition of the real, and an account of the personal, estate. A portion of the bond ^creditors, and among them Glover, for whom this action is brought, interprosed a claim to be paid out of the real estate; and upon taking the account of the personal estate, it appeared that assets had come to the hands of the administrator, sufficient to pay Glover’s debt, which he applied to the payment of simple contract debts, after notice. This was a devastavit in him, which makes the securities liable. All the persons interested in the estate, were parties to that proceeding ; which was in effect beneficial to the securities : for whatever was received by the creditors out of the sales of the land, diminished their liability to that extent; and they have very little reason to complain that they are only made liable for the balance. That the creditors resorted to Equity to obtain payment out of the land, in no degree lessens their claim to proceed at law against the administrator or his securities. And without giving effect to the report, confirmations, and orders in Equity, as res judicata, establishing a devastavit, the other evidence before the court below was enough for that purpose. The written notice of Glover’s debt was served on the administrator, the 2Tth January, 1830; and his account filed with the Ordinary, exhibited an amount of three thousand dollars, then in his hands, and paid, subsequently, to simple contract debts. This, with the return of nulla bona on the execution against the administrator, abundantly establishes the devastavit. The administrator has not performed his undertaking, faithfully to administer the personal assets. And the failure of the creditor to obtain the whole of his debt out of the real estate, is no defence to his action against the securities, who are justly liable, upon the same proof which would have been sufficient against their principal. There is no pretence for the charge of laches against the creditor, admitting that to be a valid defence ; although it would not be, for he gave timely notice of bis demand; and both tbe personal estate was exhausted, and the land sold for partition, before he obtained judgment. That a sufficient sum was not retained to pay all the bond debts, was not the fault of the plaintiff, but of the administrator, and the heirs at law.

See Sup. 100; 7 Rich. 179; 3 Bur. 530; Wiley vs. Johnson, 6 Rich. 358. An.

Hunt and Thomson, for the motion. Grimke, contra.

The judgment of the Circuit Court is affirmed.

The whole Court concurred.  