
    State, use, &c, v. Ferguson et al.
    In a suit by an administrator de bonis non upon the bond of his predecessor, under secs. 37 and 38, chap, 4, Rev. iSM., for failure to account, &c., the declaration must aver that such previous administrator, or, in case of his death, his representatives, had been ordered by the Court of Probate to account, &c-, and a failure or refusal to comply, or that having accounted for the estate, the court had ordered the same paid to plaintiff, and a failure or refusal, &c.
    
    
      Appeal from the Chicot Circuit Court.
    
    This was an action of debt brought in the name of the State for the use of William H. Gaines as administrator de bonis non of Bénj. Patton, against Ferguson, Rives, Bryant and Fisher, securities of John Clark, deceased, the original administrator of Patton, determined in the Chicot Circuit Court.
    The suit was upon the administration bond of Clark, executed 13th February, 1844. The condition of the bond is in the form prescribed by statute. The declaration set out the bond and condition, in the usual form, and assigned three breaches thereof: in substance:
    1st. That Clark, as administrator of Patton, collected and received the goods and chattels (specifying them) of his intestate to the value of $2000, to be administered according to law, but failed and neglected to administer the same, or account therefor to the Court of Probate; or to pay the debts of the said estate therewith as by law and the conditions of his bond he should — but on the contrary sold and converted the same to his individual use.
    2d. The second breach is similar to the first, except that the property alleged to have been received by Clark as administrator is more particularly described, and the value of each description thereof stated.
    3d. The third breach is like the two former, except that it alleges that Clark died on the — day of — 1845; that Gamer administered on his estate, and that neither Clark in his life-time, nor Garner since his death, had administered said goods and chattels according to law —paid the debts of said Patton therewith, or delivered the same to, or in any manner .accounted for them to said Gaines, for whose use suit was brought — and showing that Gaines obtained letters de bonis non, on the estate of Patton, 6 February, A. D. 1845.
    The court sustained a demurrer to the declaration, and plaintiff appealed.
    
      Byers & Chapman, Pike & Baldwin, for appellant.
    Ringo & Trapnall, contra.
   Oldham I.

This suit was brought for the use and benefit of Gaines as administrator de bonis non oí the estate of Benjamin Patton, deceased, against the defendants as the securities of John Clark upon his bond as the original administrator of the same estate.

■ The action seems to have been based upon the 37th and 38th sections of the ith chapter of the Revised Statutes, which enact that “If any executor or administrator die, or resign, or his letters he revoked, he or his legal representatives, shall account for, pay and deliver to his successor, or the surviving or remaining executor, all money and personal property and all the rights, credits, deeds, evidences of debts and papers of any kind belonging to the estate of the deceased, at such time, and in such manner as the court shall order, and such court in case of a refusal to comply with such order shall have power to enforce the same by attachment. The succeeding administrator or remaining executor may proceed at law against the delinquent and his securities or either of them, &c.”

The administrator de bonis non cannot maintain an action upon the bond of his predecessor, under these two sections without averring in his declaration, that such previous administrator, or, in case of his death, his legal representatives, had been ordered by the Court of Probate of the proper county to account for the money, &c., belonging to said estate, and a failure or refusal to comply with said order, or that having accounted therefor, the court had ordered the same to be paid to the administrator de bonis non, and a failure or refusal to pay according to the order of the court. Without such averment the declaration is ■ defective and does not disclose a right of action in the name of the administrator de bonis non against his predecessor or his securities. Neither of the breaches assigned in the declaration of the condition of the bond sued upon, contains any such averment as either of those above stated. It may be insisted that as each of the breaches aver that Clark as administrator of Patton, collected and received the property of the estate and sold it and appropriated the proceeds to his own use, it cures the omission. It was the duty of the administrator to collect and receive the property, to sell it and receive the proceeds. The time for the making of his first settlement had not arrived when, as it appears from the date of the bond, his success- or was appointed. The right of action given to the administrator de bónis non against the preceding administrator and his securities does not extend to any and every breach of the bond, but upon the facts supposed by the sections of the statute above referred to. The judgment of the Circuit Court sustaining the demurrer to the declaration was correct, and the same is affirmed.  