
    R. Beasley, Ordinary, vs. William J. Mott and others.
    
      Administrator — Devastavit—Practice—Fi. Fa.
    
    
      AJi. fa. in the sum. pro. jurisdiction, against an administrator, upon a decree by default for the debt of the intestate, should conform to the forms in the higher jurisdiction, and direct the sheriff to levy the debt, interest and costs of the goods, &c., of the intestate, and if there be none, then to levy the costs of the proper goods, &c., of the defendant.
    
      Afi.fa. within the sum. pro. jurisdistion against an administrator upon a decree by default for the debt of the intestate, directed the sheriff to levy the amount, debt, interest and costs, of the goods and chattels, lands and tenements of the deceased and of the defendant, wheresoever found ; and the sheriff made return that “ the defendant has no property upon which to levy this execution —Held, in an action on the administration bond, against the administrator'and his sureties, that they?, fa. and return by the sheriff did not show a devastavit, and a non-suit was ordered.
    BEFORE GLOYER, J., AT DARLINGTON, EXTRA TERM, JULY, 1859.
    
      Sum. pro. on tbe administration bond of William J. Mott, administrator of H. T. Mott. The action was against the administrator and his two sureties, to recover the amount of a decree in the sum. pro. jurisdiction recovered by Haveland, Harral & Co., against the administrator, on a sealed note given by the intestate. The pleas were non est factum and performance.
    The plaintiffs, to sustain their replication to the plea of performance, produced the sum. pro. against the administrator, the fi. fa. thereon and return of nulla Iona by the sheriff.
    The sum. pro. stated “that William J. Mott, administrator of all and singular the goods and chattels; rights and credits, which were of H. T. Mott, deceased, .who died intestate, the defendant, is indebted to your petitioners in the sum bf thirty-five dollars and fifty-five cents, besides interest, due by sealed note, a copy of which is exhibited, and refuses "payment.”' The note exhibited bore date the 9th March, 1854, and was made by H. T. Mott, payable to Haveland, Harral & Co. The fi. fa., reciting a decree for plaintiffs fpr thirty-five dollars and fifty-four cents with interest, and ten dollars costs, directed the sheriff “ to make of the goods and chattels, lands and tenements of the said H. T. Mott, deceased, and of the said defendant, wheresoever found, the said sum of money so adj udged to the said plaintiffs, together with the accruing interest and costs aforesaid.” The sheriff returned that “ the defendant has no property on which to levy this execution.” The plaintiffs also produced the inventory, appraisement and returns of the administrator.
    The defendants moved for a nonsuit, which, his Honor overruled. The decree was for the plaintiffs.
    The defendants. appealed, and now renewed their motion for a nonsuit on the grounds :
    1. Because there was no judgment proved against the intestate, or against William J. Mott, as administrator.
    2. Because there was no evidence of a devastavit.
    Moses, for appellant,
    cited Michael vs. Caldwell, 2 Sp. 276.
    Phillips, contra.
   The opinion of the Court was delivered by

Whitner, J.

The proceedings on which this case rests, are very defective throughout. The mind of the Court is disinclined to an undue enforcement of technical precision, but there must be some adherence to forms, that we may not lose the substance entirely. The process on which the original judgment was founded is laid before us, and from the allegation without a reference to the copy note exhibited, an opinion could not be formed, whether this was brought to recover a debt due by one styling himself administrator, or for the debt of his intestate. Following it to the next step, the judgment was by nihil dicit, and consists, it is said, in the decree entered on the minutes of the court, and for purposes of brevity, is against the defendant. In the higher jurisdiction, it is well understood as in 2 Tidd. Prac. 1017, such a judgment is for the debt, damages and costs to be levied of the goods of the testator, or intestate in the hands of the defendant if he hath so much in his hands to be administered, and if not then, the costs to be levied of his own proper-goods. This being a suit in the summary process jurisdiction, the Courts have been constrained to regard the short enjry in the minutes, as a judgment for all purposes for which it could be regularly entered; Giles vs. Pratt, 1 Hill, 289. Dispensing therefore with the formal judgment, the execution should conform to legal requirement nevertheless. In the proceeding under review, there is a like confusion and disregard of form as in all that preceded it. The sheriff is thereby "commanded to make of the goods and chattels, lands and tenements of the said deceased and of the said defendant, wheresoever found, the said sum of money so, adjudged to the said plaintiff, together w-ith the accruing interest and costs.” However competent it may have been upon the authority of the case cited to amend these proceedings, it is enough for the present to. say no such step was taken. Procuring a return from the sheriff that “ the defendant has no property upon which to levy this execution,” the next step taken, is the present suit in the name of the Ordinary against the principal and his sureties on the administration bond. There is little ground to doubt that this case would fall within the ruling in the cases, The State of So. Ga. for sundry persons vs. J. W. Staggers, decided at the present term, so that nothing would be gained by retaining the case, and sending it back for amendment so far as the same might be done in conformity with the case of Giles vs. Pratt.

However conclusive the -evidence may be of assets by the judgment rendered, the sheriff’s return has failed to ascertain the fact of no goods, &c., of the intestate on which to levy. The proceeding under review is not an action of debt suggesting a devastavit, and against the principal alone; but assuming the fact to be so from premises not authorizing such a presumption, calls on the parties to the bond, principal and sureties, in the name of the Ordinary, and is therefore premature and fatally defective. The decree rendered in this case is set aside, and the motion for nonsuit is granted.

O’Neall, Wardlaw, Withers, Glover, and Munro, JJ., concurred.

Motion granted,  