
    *Burnett and Others v. Harwell and Others, &c.
    October, 1831.
    Executors and Administrators — Bond — Liability of Sureties. — Under tie former provisions of the statute concerning: executors’ bonds, 1 Rev. Code, ch. 104, § 21, the sureties of an ex’or are not responsible for the proceeds of land sold by him under a power in the testator’s will.
    Same — Same—Right of Assignee of Legatee to Bring Action on. — Under the provisions of the same statute, an action cannot be maintained on an executor’s bond, at the relation of an assignee of a legatee of a decree for a legacy: such action can only be maintained at the relation of the person who has the legal right to the debt.
    Same — Same—Action on — Allegations,—In such an action, the declaration must aver that assets sufficient to pay the debt came to the ex’or’s hands, or the amount of assets that came to his hands, and the devastavit thereof; and if the declaration contain no such averment, it is bad on general demurrer; per Tucker. P.
    Debt, in the circuit court of Mecklenburg by Harwell and others, justices of the county court of Mecklenburg, at the relation of Bruce & Sydnor, against Burnett and five others his sureties, on a bond given by Burnett to the justices of the county court, upon his qualification as executor of John Davis, in February 1809, in the penalty of 100,000 dollars, with condition in the form prescribed for an executor’s bond, by the statute, 1 Rev. Code, ch. 104, § 21, p. 380.
    The declaration, after alleging the execution of the bond, and setting out the condition in hsec verba, assigned as the breach thereof, that Burnett, the executor, had not well and truly administered the goods, chattels and credits of his testator’s estate, that came to his hands to be administered, and had not well and truly paid and delivered all the legacies in and by the testator’s will bequeathed, as far as the said goods &c. extended, according to the value thereof, but had failed to pay and deliver the legacies, and had wasted the goods &c. in this, that he had not paid Susanna Davis the amount of a legacy by the testator’s will bequeathed to her, for which, she brought a suit against Burnett the executor, and others her co-legatees, in the superiour court of chancery of Richmond, and recovered a decree against the executor for 6SSS dollars with interest &c. for and on account of the legacy bequeathed to her by the ^testator’s will, and the costs of suit; and then, by deed of assignment duly executed, (whereof pro-fert was made) she assigned her decree and legacy to Bruce & Sydnor, the relators; and Bruce & Sydnor sued out sundry writs of fieri facias upon the decree, against Burnett the executor, which were returned satisfied only as to 1936 dollars, and nulla bona as to the residue; and so Burnett, the executor, had failed to pay and satisfy the decree aforesaid, except the 1936 dollars, and had not well and truly administered the goods &c. of the testator, but had wasted the same; by reason whereof right and action accrued to the plaintiffs, the justices, to demand and receive the penalty of the bond from the defendants, the executor and his sureties &c.
    The defendants put in a general demurrer to the declaration, and also pleaded conditions performed, on which an issue was made up.
    The court overruled the demurrer; and, upon the trial of the issue, the jury found for the plaintiffs 4140 dollars with interest &c. in damages; the court gave them judgment accordingly; and the defendants appealed to this court.
    At the trial of the issue, the plaintiffs gave in evidence the record of the proceedings and decree, in the suit of S. Davis against Burnett the executor and others, in the superiour court of chancery of Richmond ; by which it appeared, that the amount decreed to her against the executor, consisted, for far the greater part, of a share bequeathed to her by the testator’s will, of the proceeds of real estate thereby devised to be sold by the executor, and accordingly sold by him. Whereupon, the defendants’ counsel moved the court to instruct the jury, that the executor’s sureties were no wise bound by the bond, for the proceeds of the real estate sold by their principal, and not accounted for; which instruction the court refused to give; and the defendants filed a bill of exceptions to the opinion.
    Johnson for the appellants
    — 1. The demurrer to the declaration ought to have been sustained. Bruce & Sydnor *were not proper relators. The statute provides, that an executor’s bond “may be put in suit, and prosecuted from time to time, by and at the costs of any party injured by a breach thereof;” but the party injured to whom the action is given, mlist be a party having a legal right to the damages sustained by the breach. The action lay at the relation of S. Davis, but not at the relation of Bruce & Sydnor, to whom she assigned her decree against the executor; the decree not being, at law, an assignable subject, and the assignment, therefore, passing only an equitable right. Tolson v. Elwes, 1 Leigh, 436; Meze v. Howver, Id. 442: Garland v. Jacobs, 2 Leigh, 6S1. There was no manner of privity between the assignees and the ob-ligors in the bond. The right of the assignees had been ascertained by no judicial proceeding; and no action lies on an executor’s bond, till the right of the party claiming has been judicially established. Braxton v. Winslow, 1 Wash. 31. Besides, the declaration does not allege, that assets sufficient to satisfy the legacy, and the decree for it, came to the executor’s hands, or what amount of assets came to his hands, to be administered; neither is there any distinct averment, that the amount of the decree was not paid to the assignor. 2. The opinion given by the circuit court at the trial, was clearly erroneous. The sureties of the executor are bound by their bond, for the due administration of the personal assets only. Jones v. Hobson, 2 Rand. 483.
    Wickham for the appellees,
    did not abandon the last point, as to the liability of the sureties for the proceeds of real estate sold by the executor; but he submitted it without any remark. As to the points made upon the demurrer, he said, — The statute gives the action on the bond to any party injured by the breach; and the assignees of the decree in this case, were parties injured. They were entitled to receive the money, and to give a discharge of the debt; and after the assignment, the assignor had no right to receive the debt. Payment to the assignees would have *saved the obligors from liability on their bond: payment to the assignor, after notice of the assignment, would have left them liable to the assignees. The objection is, that the assignment gave them not a legal but only an equitable right to the money; but the assignor herself had only an equitable right; namely, a right to a legacy. If, for this reason, the action carmot be maintained a,t the relation of the assignees, so neither can it be maintained at the relation of the assignor; and then the executor’s bond is no security for a legatee. The other defects imputed to the declaration are merely formal; substantial objections only are to be regarded upon a general demurrer. The declaration avers, in substance, that the executor wasted the assets in not paying the amount of the decree.
    
      
       Executors and Administrators — Bond—Liability of Sureties. — The principal case is cited in foot-note to Murphy v. Carter, 23 Gratt. 477.
    
    
      
       Same — Same—Right of Assignee of Legatee to Sue on. — See on this question, the principal case cited in foot-note to Tolson v. Elwes, 1 Leigh 436; Poage v. Bell, 8 Leigh 607; Leightons v. Hinchman, 1 Gratt. 156, and note-, Yerby v. Lynch, 3 Gratt. 498, 512; Cala-ban v. Depriest, 13 Gratt. 276.
      In Lynchburg Iron Co. v. Tayloe, 79 Ya. 675, the principal case is cited to the point that where the assignee of a chose in action sues in equity the assignor is a necessary party. See monographic notes on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6: “Assignments’' appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
   CARR, J.

The circuit court unquestionably erred in refusing to instruct the jury, that the sureties of the executor were not bound to make good the proceeds of land sold by their principal. This court, after the fullest investigation, has settled the law on that subject, in Jones v. Hobson. There was another point argued at the bar; whether Bruce & Sydnor could as assignees of Mrs. Davis, a legatee, sustain an action, in the character of relators, on the bond of the executor? I have felt some doubt as to this; but, from the reason and analogies of the law, am led to conclude, that they cannot. We have decided in Tol-son v. Elwes, that where A. obtains a judgment, and the execution is indorsed for the benefit of B. he cannot make a motion in his own name against the sheriff, for a default, in the service and return of the writ. We have also decided in Meze v. Howver, that where an execution in the name of A. is indorsed for the benefit of B. if the sheriff levy it, and take a forthcoming bond payable to B. such bond is naught and will be quashed. These cases were decided on the particular words of the law; but the general proposition was also taken, that in no proceeding to carry a judgment or execution into effect, can the name of the transferee be ^'substituted for that of the plaintiff on the record. The law requires bond and security of executors for the safety of creditors and legatees alone; but neither of these can sue upon the bond, till they have established their demand against the executor by judgment or decree. To enforce this judgment or decree, the bond maj' be put in suit; but can it be at the relation of any but the plaintiff on the record? I think not. The words of the law are broad; “the bond may be put in suit and prosecuted, by and at the costs of any party injured by the breach thereof:” still, as the bond is given for the benefit of creditors and legatees alone, they seem to be the parties meant by the law. A creditor by bond or other assignable paper, may' it is true, by assigning it, place his assignee in his shoes; but a legacy, decree or judgment, is not assignable at law. I do not think, therefore, that the legatee in this case, could by her assignment, enable Bruce & Sydnor to sustain this action on the bond, as relators.

CABELE and BROOKE, J., concurred.

TUCKER, P.

The first error assigned in this case by the appellants is, that Bruce & Sydnor, the relators, who claim as assignees of a decree in favour of S. Davis, one of the legatees of John Davis deceased, were not proper relators; that the suit upon the executor’s bond for the amount of the decree, should have been at the relation of the legatee, and not of her assignees. I am of opinion, that this objection is a valid one. The language of the statute is indeed very broad; that “the bond may be put in suit by any party injured by the breach thereof.” But even this broad provision may be satisfied by conceding to those who have legal claims, a right to put them in suit at law, and to those who have equitable claims, a right to sue in equity. Or, it may be satisfied by conceding, that persons standing in the relation of Bruce & Sydnor to the case, may sue even at law, in the name of the justices, upon the relation of their assignor, *and for their own use. If, however, this may seem too nice and technical, I am willing to place the matter upon the more liberal ground of the real meaning of -the statute, and the mischiefs and embarrassments, which would proceed from the adoption of a different construction. The statute then, prescribes that any party injured by a breach of the bond may put it in suit. The question still recurs, who is to be considered a party injured? and how is the fact to be ascertained, that the suitor comes within that description? Now, it is agreed, on all hands, that no suit can be maintained upon the bond until the party suing has first established his claim against the estate, if hé is a creditor, by the judgment of some court of justice, or if he is a legatee, by the decree of a court of chancery, or the judgment of a court of law upon the express assumpsit of the executor. It is believed, that the records of our courts furnish no instance of an attempt to sue on, the bond, until the party has established his demand by a previous judicial proceeding. Indeed it cannot be. The action for a dev-astavit never could be maintained, until there was a previous judgment against the executor establishing the demand, and the action on the bond could only have been sustained, until within a few years past, after a judgment for a devastavit. And even now, the law expressly requires a previous, judgment for the demand, and a return of nulla bona, before a suit can be sustained upon the bond. I think, therefore, we may safely affirm, that the party injured must have established his right to sue, and the fact of his falling within the description of the statute, by some previous judicial proceeding, before he can be entitled to be a relator in an action upon an executor’s bond. It may be said, that the demand in this case has been established by a judicial proceeding, and the requisitions of the statute thereby satisfied. But how has the connexion of Bruce & Sydnor with that demand, been established? Had S. Davis been the relator, and the action been indorsed for their use, every thing would have been right. She would have had a legal title *to recover, founded upon the actual decree in her favour of a court of record of the highest authority; and the rights of her equitable assignees would have been secured by the indorsement. The defendant upon the service of the process (which is a demand in law) would have seen that that demand was the demand of an ascertained creditor, and might have satisfied it forthwith. ■ But, as the suit is now brought, various principles of the law are set at naught. Persons having equitable interests are found asserting those interests in a legal tribunal, instead of filing their bill in equity upon the foot of the former decree, and seeking to enforce its provisions against principal and sureties, in the mode so familiar to the profession in that court. Invasions of the jurisdiction of courts of law by the courts of equity, about which we are so sensitive, are not more mischievous than many invasions of the jurisdiction of equity would be. This among others would be attended with great inconvenience. If the assignees, Bruce & Sydnor, had sued in equity, S. Davis, their assignor, would have been a necessary party'. The question of assignment or no assignment, could there have been definitively settled, in the cause between Bruce & Sydnor, S. Davis, and the executor. But in the action at law, though the defendants should have pleaded no assignment from S. D. to the relators, no verdict could have been given, which could have protected them against a future claim on her part, if she should be able to negative the authenticity of the assignment, or to shew some subsisting equity or discount against her assignees. Eet me add too, that the want of privity between themselves and the defendants, leads, I think, to another consequence, inconsistent with legal principles. In the theory of the law, the writ itself is a demand of the debt from the defendant. Upon the service of the writ, if he knows the demand to be just, he may discharge it forthwith. It is proper, then, that he who sues him should be known as a creditor; but this cannot be where the relator in the cause is an equitable assignee, unknown to himself, and not recognized by a court of law. *1 am of opinion, therefore, that this defect in the action is fatal.

The next error assigned is, that there is no averment in the declaration, that assets to the value of the debt ever came to the hands of the executor. I think this also a sound objection to the declaration. The question here, it will be observed, does not arise after a verdict. We are considering it upon the general demurrer filed in the court below to the declaration. The statute of jeofails is, therefore, out of the question, except the clause which declares that, upon general demurrer, the court shall only regard such errors as are specially assigned, “unless something so essential to tile action or defence as that judgment according to law and the very right of the cause cannot be given, be omitted.” That there is no averment in the declaration, that assets to the value of the debt, or indeed any assets, came to the hands of the executor, appears from the most rigorous examination. It remains then only to inquire, whether this averment be so essential to the -action, as that judgment could not be given according to law' and the very right of the cause? I think it was. The matters which go to make up the right of action, in cases of this description, are threefold; 1. an ascertained demand against the estate; 2. assets in the hands of the executor; and 3. the return of the sheriff, that no such assets can be had to satisfy the execution. It cannot be denied, that upon the trial, these three things must be shewn in order to establish a breach of the condition of the bond. The necessity of proof of assets is obvious, from the consideration, that if no assets were received, there could be no breach by devastavit; and the necessity of establishing by proof the amount of assets, is also clear, because it has been repeatedly decided, that the jury must find either sufficient assets or the amount of assets. Sturdivant v. Raines, 1 Leigh, 481; Gardner’s adm’r v. Vidal, 6 Rand. 106. This, then, is obviously one of the most essential ingredients in the action. It may safely be called, indeed, the very gist of the action. And if it be 'x'the important inquiry before the jury on the trial of the plea of plene administravit, or conditions performed, it is not less important in the case of a demurrer. For it must be remembered, that upon overruling the demurrer of the defendant to the plaintiff’s declaration, peremptory judgment is pronounced against him for the plaintiff’s demand. If, therefore, the declaration omit what is essential to constitute a right of action, it is impossible to give such judgment without palpable injustice. For, though the demurrer admits what is set forth in the declaration, it does not admit what is not; and hence it is that (sweeping as are the provisions of our statute of jeo-fails) they reach no case of a demurrer for matter of substance. Much, indeed, may be cured by a verdict; but no errors, except those of mere form, are protected from the effect of a demurrer. A further consideration may illustrate the essential character of an averment of assets, in order to enable the court to pronounce judgment. Even a verdict for the plaintiff for his demand will not justify a judgment of the court, unless that verdict expressly finds a sufficiency of assets, or the amount of the assets, so as to enable the court to graduate thereby its own judgment. How, then, can the court give judgment according to law and the very right of the case, when, so far from knowing the amount or sufficiency of the assets, it does not even know from the plaintiff’s own declaration, that the defendant ever received any assets at all? I cannot perceive. I therefore conclude, that on this point also, there is error in the judgment of the court below.

The third objection relied upon, arises on the bill of exceptions; the court refusing to instruct the jury, that the securities of the executor were not bound for the proceeds of the land sold under John Davis’s will. This decision is in conflict with the case of Jones v. Hobson, and is therefore erroneous.

Judgment reversed, and judgment entered on the demurrer, for the defendants.  