
    Dennis vs. Smith.
    Assumpsit by tbe distributee of an estate against a purchaser of property from the administratrix, alleging that payment had been fraudulently made in worthless railroad stock, and that the administratrix refused to sue for the purchase money, is demurrable, the administratrix not being a party to the suit, and there being no allegation that she and her sureties were insolvent.
    Administrators and executors. Parties. Actions. Before Judge Buchanan. Coweta Superior Court. March Term, 1878.
    Dennis brought suit against Smith. He alleged that his father died leaving his mother and himself the only distributees of the estate; that his mother became the administratrix, and made the sale of personalty set out in the decision.
    Defendant demurred to the declaration, among other reasons, because of non-joinder of the administratrix, and because there was no allegation of insolvency. The demurrer was sustained, and plaintiff excepted.
    John S. Bigby, for plaintiff in error,
    cited 19 Ga., 130; 46 Ib., 34; 57 Ib., 418; Law & Eq. Rep’tr., July 18, 1877, p. 62; 1 Story’s Eq. Juris., §§424, 580, 581; 19 Ga., 94; Code §3151 ; 3 Kelly, 581; 26 N. J. Eq., 182; 28 Ib., 66 ; 100 Mass., 382; 2 Paige, 202; 7 Johns. Ch., 150 ; Code, §§2333, 3152, 3082, 2330, 2535; 19 Ga., 132-3.
    No appearance for defendant.
   Warner, Chief Justice.

This was an action of assumpsit brought by the plaintiff against the defendant to recover a sum of money alleged to be due in consequence of his receipt of certain cotton from the administratrix of the estate of Green K. Dennis, deceased, and making sale thereof for his own use and benefit, and failing to account therefor to the plaintiff, as one of the distributees of said estate, and alleging that said administratrix refuses to sue the defendant for the recovery of the money for which the cotton belonging to said estate, was sold by defendant, who, it is alleged, fraudulently paid said administratrix in certain railroad stock which was worthless, etc. The defendant demurred to the plaintiff’s declaration, which demurrer the court sustained, and the plaintiff excepted. There was no error in sustaining the defendant’s demurrer to the plaintiff’s declaration— inasmuch as it is not alleged that the administratrix, or her securities on her bond, are insolvent, and because she is not made a party to the suit in order that she may be heard as the legal representative of the estate.

Let the judgment of the court below be affirmed.  