
    Caleb Cope & Co. v. E. J. McFarland, Adm’r, &c.
    1. Administrator and Executor. Devastavit. Scire facias. Debt. When an administrator or executor has been guilty of a devastavit he becomes personally responsible, and his liability may be enforced, either by an action of debt on the judgment obtained against him suggesting a devastavit; or, by scire facias, founded on such judgment, suggesting, in like manner, a devastavit.
    
    2. Same. Same. Judgment conclusive. In either form of proceeding on a judgment against an administrator or executor, suggesting a de-vastavit, he will not be allowed to plead ■ any plea which assumes to place his defence merely on the want of assets. The judgment is, in general, conclusive upon him.
    3. Scire facias. Administrator and executor. Judgment. What the scire facias must aver. A scire facias against an administrator or executor, to render him personally liable on a judgment rendered against him in his representative character, must allege a devastavit; and, also, the tact of a judgment obtained against him in his character of executor or administrator; lor a scire facias will not lie on a judgment against him individually, or against his testator or intestate.
    EROM HAYWOOD.
    This cause was heard upon demurrer to the seire facias, before W. H. Loving, S. J., at the July Term, 1858. The demurrer was allowed, and the plaintiff appealed.
    E. J. Read, for the plaintiff.
    T. G. & W. M. Smith, for the defendant.
   McKinney, J.,

delivered the opinion of the Court.

The demurrer to the scire facias was properly sustained. Where an executor or administrator has been guilty of a devastavit, that is, a wasting or misapplying of the assets, contrary to the duty imposed on him by law, he becomes personally responsible; and his liability may be enforced either by an action of debt, on the judgment obtained against such executor or administrator, suggesting a devastavit, or, as is the usual course in our practice, by scire facias founded on such judgment, suggesting, in like manner, a devastavit. Whichever mode of proceeding is adopted, the averments and proof are the same, and the defence is also the same; in both, a devastavit must be distinctly averred and proved. The foundation of this proceeding, in either form, is the judgment obtained against the executor or administrator. And if he has allowed judgment to go against him, without pleading plene administrarit, or want of assets, such judgment will, in general, be conclusive upon him to show that he has assets to satisfy the judgment. So that, in an action of debt, or scire facias, on such judgment, suggesting a devastavit, he will not be allowed to plead any plea which assumes to place his defence merely on the want of assets, for such plea would be contrary to what is impliedly admitted by the judgment against him.

The scire facias in the present case does not sufficiently allege a devastavit. The statement that the defendant “converted to his own use” the assets of the estate, is not of itself sufficient; it is not equivalent to a charge of a devastavit. On the contrary, the authorities fully establish that a disposing of the goods of the testator to the executor’s own use, is no devastavit, if he pays the téstatenos debts, to their value, with his own money. 1 Saund., 807; 1 Williams on Ex’rs, 54S; Com. Dig. Admin., (J. 2.) Another objection to the scire facias is, that it does mot distinctly allege the fact of a judgment obtained against the defendant, as administrator of the intestate,. This is indispensably necessary, for no action of -debt, or scire facias, founded on a devastavit by the executor or administrator, will lie against him upon a judgment obtained against his testator or intestate; at least, not until after the executor or administrator shall -have been made a party to such judgment. 2 Williams on Ex’rs, 1700. Neither can this proceeding, in either form, be supported against the executor or administrator upon a judgment against the latter in his individual, and not in his representative, capacity. Id., 1699, note 1.

Upon the foregoing grounds, without noticing other informalities in the scire facias, the judgment must be .affirmed.  