
    Allen and Others &c. v. Cunningham and Others.
    December, 1831.
    Executors and Administrators — Bond — Right of Administrator d. b. n. to Bring Action on — Case at Bar. — M. H. adm’r of R. H. recovers a judgment against E. B. adm’x of R. B. for debt due plaintiff’s intestate, and sues out a fi. fa. thereon, which is returned nulla bona; then, M. H. the plaintiff, dies; and administration de bonis non of R. H.’s estate is granted to A. — Held, the action of debt on the administration bond of E. B. against her and her sureties, lies at the relation of A. the adm’r de bonis non of R. H. and not at the relation of the representative of M. H. the first adm'r of R. H. upon the construction of the statute of 1813-14, ch. 13, i 2; 1 Rev. Code, ch. 104, § 63.
    Same — Same—Same—Necessity for Sci. Fa. — And the adm’r de bonis non need not, in order to entitle himself to put the administration bond in suit, bring sci. fa. or action of debt on the judgment recovered by the first adm’r.
    Same — Same—Same—Statutes—Retrospective Effect.— The fi. fa. sued out by M. H. the first adm’r, was sued out and returned before the statute of 1813-14 was passed; yetHELD, the statute applies and gives the action in such case, being retrospective as to the issuing and return of the execution, as well as the recovery of judgment.
    Judgment — Return of “No Effects” — Sufficiency.—A fi. fa. on judgment against an adm’r, is returned “no unadministered or unincumbered effects found” &c. Held, this is a return of nulla bona, to entitle the plaintiff to an action on the administrator’s bond.
    Debt, in the circuit court of Buckingham, by Allen and others, justices of the county court of Buckingham, at the relation of Anderson administrator de bonis non of Hill, against Cunningham and others, sureties of E. Burton administratrix of R. Burton deceased, upon the administration bond given by her to the justices of the county court, with condition (in the form prescribed by law) for her due administration of her intestate’s estate.
    *The declaration, after alleging the execution of the bond, and setting out the condition in haec verba, assigned the breach thereof, in substance, thus — that Robert Hill, in his lifetime, brought an action of debt against E. Burton adminis-tratrix o± R. Burton, upon a bond of her intestate to him, but died pending the action, and Moncrief Hill, his first administrator, revived it, prosecuted it to judgment, and sued out a writ of fieri facias; on which the sheriff made return, that he could find no unadministered or unincumbered effects to levy it on (which execution was so sued out and returned in the year 1813) ; and Moncrief Hill, who, as the administrator of Robert, had recovered the judgment and sued out the execution thereon, having since died, administration de bonis non of Robert’s estate, was committed to Anderson, the relator, the judgment remaining still in full force and wholly unsatisfied; yet there came to the hands of the administra-trix, assets of her intestate’s estate sufficient to satisfy the debt, which she wasted; by reason whereof, and of the statute in such case made and provided, action accrued to the plaintiffs, the justices, at the relation of - Anderson the administrator de bonis non, to demand the penalty of the bond &c. Upon general demurrer to the declaration, the circuit court held, that the law was for the defendants, and gave them judgment accordingly. From this judgment the relator took an appeal, in the name of the justices, to this court.
    Michie, for the appellant.
    The circuit court sustained the demurrer, probably, because it thought the action did not lie at the relation of Anderson the administrator de bonis non of Robert Hill, but only at the relation of the representative of Moncrief Hill, the first administrator of Robert, who recovered the judgment against Burton’s administratrix. But the debt was due to Robert Hill’s estate, not to Mori-crief’s; for, though the judgment for it was recovered by the first administrator, yet, having been no wise satisfied in his time, the judgment, and the money due upon it, remained ^assets of his intestate, unadministered and unconverted by him, which, therefore, devolved to the administrator de bonis non. The scire facias to revive the judgment, or the action upon it, lay for the administrator de bonis non. He was the person injured by the devastavit committed by the admin-istratrix of Burton’s estate; in other words, by the breach of the condition of her administration bond. Therefore, he had the right to put the bond in suit; he was the only proper relator. 1 Rev. Code, ch. 104, (S 21, 63, p. 380, 390; Dykes v. Woodhouse, 3 Rand. 287; Wernick’s adm’r v. M’Murdo, 5 Rand. 51; Turnbull, ex’or v. Claiborne, just decided (ante, p. 392).
    The attorney general, contra.
    The action upon the bond of an executor or administrator, is given by the statute; therefore, it lies only at the relation of the party to whom the statute gives it. It had been decided, that no action lay on such a bond, to charge the sureties, till after the executor or administrator had been convicted of dev-astavit, by judgment in an action against him, and an execution and return of nulla bona; Braxton v. Spotsylvania justices, 1 Wash. 31; Gordon’s adm’rs v. Frederick justices, 1 Munf. 1; King William justices v. Carter’s ex’ors, 2 Munf. 24; Hairston v. Hughes &c. justices of Henry, 3 Munf. 568; Spotswood v. Dandridge, 4 Munf. 289. The decisions on this point, gave occasion to the statute of 1814, acts of 1813-14, ch. 13, § 2; 1 Rev. Code, ch. 104, § 63. *Now, 1. to whomsoever the debt belongs, this statute clearly gives the action to the person who recovers the judgment and his representatives: if the judgment has been recovered by an administrator for his intestate’s estate, against the executor or administrator of the debtor, and the plaintiff dies before the judgment is satisfied, and the judgment and the money due upon it belongs to the administrator de bonis non, yet the remedy upon the administration bond, is given only to the representative of the first administrator, the person who recovered the judgment; and, if the administrator de bonis non may pursue this remedy, he must at least do so, in the name of the representative of the first administrator. The language of the statute is explicit; there is no abiguity, no room for construction. 2. The provision of the statute, is prospective: it gives the action on the bond, in cases of such dev-astavit as shall be' ascertained after the enactment; in cases, where the execution against the executor or administrator, which fixes the devastavit, “shall be returned” nulla bona. But here, the execution against' Burton’s administratrix, was. returned in 1813, before the statute was passed. 3. Here, there was no such return of nulla bona on the execution against the administratrix, as the statutes requires, to found the action on .her bond. The return was, that the sheriff could find no un-administered or unincumbered effects on which to levy the execution. Now, there might have been effects unadministered, though incumbered; assets, which though incumbered, might yet be sufficient to pay the debt; assets incumbered for debts far short of their value.
    Michie, in reply.
    The statute first speaks, of judgments theretofore recovered or thereafter to be recovered, and then proceeds, — if execution on such judgments, shall be returned *nulla bona &c. The future tense as to the returning of the execution, has relation to the fact of the judgment having been recovered, not to the date of the statute. The return upon the execution was a substantial return of nulla bona. If there were effects-incumbered, yet sufficient to satisfy the debt, they could not be taken in execution ; for they could only be incumbered by pawn or gage; which divested the administratrix of the legal estate; and, then, no execution could be levied on them. 2 Wils. Gwill. Bac. Abr. Execution, C. 4, p. 715, and the cases there cited. The statute in question is a remedial one, and ought 'not to be-strictly construed so as to embarrass the remedy, but liberal^7, so as to advance the remedy for the party injured.
    
      
       Executors and Administrators — Bonds—Action.—In State v. Hall, 40 W. Va. 463, 21 S. E. Rep. 762, it is said: “Barton, in his Law Practice (volume 1, p. 166), in speaking of fiduciary bonds, says: ‘The action of debt may be maintained upon bonds executed by fiduciaries, such as executors, administrators, guardians, committees, trustees, and receivers, which are made payable to the commonwealth, and conditioned for the faithful performance of their several duties by the various officers who execute them. The suit is brought in the name of the commonwealth at the relation of the claimant; but the relator must be the party having the legal right to the debt,’ — citing Allen v. Cunningham, 3 Leigh 395." See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6; also, monographic note on "Statutory Bonds” appended to Goolsby y. Strother, 21 Gratt. 107.
    
    
      
       Judgments — Execution—Revival.—In Holt v. Lynch, 18 W. Va. 572, it is said: “It seems atone time to have been much doubted, whether this right to a scire facias in such case was a right at common law or by virtue of the statute Westminster 2. Xn Allen v. Cunningham, 3 Leigh 401, Judge Cabe seems to have thought. that It was by virtue oí that statute. He says: ‘Where a new person, who was not a party to the judgment, derives a benefit by, or becomes chargeable to, the execution upon it, there must be a scire facias to make him a party to the judgment, 2 Wm. Saund, 8, note 1, 72 e, note 3. At common law no scire facias would issue on a judgment except in real actions. In all personal actions, where the lapse of time or the change of parties hadbeensuch as to prevent the taking out execution, the party entitled to the judgment was obliged to bring an action of debt on it, 2 Inst. 269. To remedy this in-convtnienpe the statute of Westminster 2, 1 Ed. I, ch. 45, gave a scirefacias in personal actions.”
      See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       This statute provides, that “when anj7 person or persons shall have heretofore recovered or shall hereafter recover, any judgment against executors or administrators, in their representative character; and, upon execution issued upon such judgment, it shall he returned, that there are not found, in the possession of the said executors, or administrators, sufficient assets of the testator or intestate, to pay and satisfy the whole or any part of such judgment (costs excepted); such person or persons recovering such judgment, his, her or their executors or administrators, may, upon such return of the execution as aforesaid, immediately commence and prosecute his, her or their action against such executors or administrators. and their sureties, or against either of them, or the executors or administrators of either of them, upon the bond given by them, for the performance of the duties of such executors or administrators; in which action, the defendants may plead any plea orpleas, and in support thereof, offer any evidence, which would be legally admissible, in any action against executors or administrators suggesting a devastavit.” — Note in Original Edition.
    
   CARR, J.

’ Besides the points made bj7 the attorney general, to sustain the judgment of the circuit court, another occurred to us in conference; namely, whether this, suit can be maintained at the relation of Anderson the administrator de bonis non, without his having first made himself a party to the record of the proceedings of the first administrator by scire facias? I shall first dispose of the attorney general’s, objections to the action.

His first objection was, that the statute does not give the action at the relation of the administrator de bonis non. In the construction of states, it is the meaning of the legislature we must seek for: this constitutes the essence of the law: its words are our main guide, but we must not shut our eyes to every thing else, and stick exclusively to the letter. The context, and the subject matter must be looked to; the mischief and the remedy. This court by a series of decisions, had settled it as the law, that, before an action could be brought on the bond of an executor or administrator to charge his sureties, there must have been, 1. a suit against the representative to establish the demand, and 2. a suit to-fix the devastavit. The legislature, thinking this intermediate suit unnecessary, passed a statute in 1814, dispensing with it: this statute, in the revision of 1819, forms 'x'the 63rd section of the statute of wills, 1 Rev. Code, ch. 104, p. 390. It is seen, at a glance, that the sole object of that statute was to take away the necessity of the second action. The legislature never dreamed of changing, or even of explaining the existing law, as to the person who might sue on the bond; whether, in a case like this before us, the representative of the administrator who recovered the judgment, or the representative of the intestate : it merely intended to declare, that the person entitled to the action, might, immediately on the return of nulla bona, sue on the bond. This court has determined after much deliberation, that the person thus entitled, in a case like the present, is the administrator de bonis non. The reasons of that decision, and the mischiefs of a contrary one, may be seen at large in Dykes v. Woodhouse and Wernick v. M’Murdo, and will not be repeated here.

The attorney general’s second objection is founded on the following words of the statute — 1 ‘Where any person shall have heretofore recovered, or shall hereafter recover, any judgment &c. and upon execution issued &c. it shall be returned, that there are not found” &c. He insisted, that these words are wholly prospective, and that, whenever the judgment was obtained, an execution must issue after the passing of the statute, in order to authorize the action it gives. I cannot see the force of this objection. The object of the statute was to give the action on the bond of the executor or administrator, immediately on the return of nulla bona. It clearly takes in judgments obtained before the enactment: W’hy not the issuing and return of the execution also, which are mere ministerial acts? When its object was to prevent delay and expense, can it be supposed, that it would put the parties to the useless delay and expense of issuing another execution, when one had already been returned nulla bona? Besides, to make such issue of a second execution, a pre-requisite to the action on the bond, would, in all cases where the plaintiff in the first execution had died since, be a denial of the action, without an intermediate *proceeding by scire facias ; whereas the law says, the suit may be brought immediately on the bond. In the case before us, for instance, the first administrator who obtained the judgment and issued the execution, died; no second execution could issue in his name. Nor do I think the words shall issue, must of necessity be taken to mean shall issue after the passing of the statute, but shall issue after obtaining the judgment. I cannot think there is any weight in this objection.

The objection, which I have mentioned as having occurred in conference, was founded on the general rule, that where a new person, who was not a party to the judgment, derives a benefit by, or becomes chargeable to the execution upon it, there must be a scire facias to make him a party to the judgment. 2 Wms. Saund. 6, note 1, 72, e, note 3. At common law, no scire facias could issue on a judgment, except in real actions: in all personal actions, where the lapse of time, or the change of parties, had been such as to prevent the taking out execution, the party entitled to the judgment, was obliged to bring an action of debt on it; 2 Inst. 269. To remedy this inconvenience, the statute of Westm. 2, 1 Ed. 1, ch. 45, gave a scire facias in personal actions: but “this statute (as my lord Coke says, 2 Inst. 472), is in the affirmative, and therefore it restraineth not the common law, but the party may waive-the benefit of the scire facias given by this act, and take his original action of debt by common law.” In Proctor v. Johnson, 1 Ld. Raym. 669, 670; 2 Salk. 600, S. C., which was a scire facias on a judgment in ejectment; and demurrer, upon the ground, that a scire facias lay not on a judgment in ejectment, for, at common law, it lay only in real actions, and the statute gives it only in personal; and 2 Inst. 469, wras cited and relied on: lord Holt said, “that Coke’s meaning was, that a scire facias would not lie, at common law, for debt or damages, but here it sounded in the realty:” he said further, “it is absolutely necessary, that a scire facias should lie in this case, because there is no other means, to execute *the judgment, if the parties die or are changed ; but, in judgments for debt or damages, the judgment might have been executed at common law, by action of debt on the judgment. ” It is clear, then, that the action of debt on the judgment existing at common law, was not taken away by the statute; and, I presume, that, in the case before us, even without the aid of our statute, the administrator de bonis non could resort to it. In truth, it differs but little in its nature from the scire facias, as the declaration gives a history of the case, and shews how the plaintiff is connected with it.

I think the judgment must be reversed.

CABEEE, J., concurred.

BROOKE, J.

I see no difficulty in the construction of the statute of 1814, now the 63rd section of the statute of wills, 1 Rev. Code, p. 390. The legislature cannot enumerate all the cases, to which the principle intended to be established will apply ; it is enough, if it gives an example of its application: the court must follow it out, by applying it to cases of a like nature. The object of this statute was to dispense with a second suit against an executor or administrator, in order to establish a waste of the assets, before a suit could be maintained on the administration bond against the sureties, to charge them. In words, it only provides for the case in which a person or persons recover a judgment, in his or their own right; but the remedy it prescribes is equally applicable to a case, in which the judgment is obtained by an executor or administrator, in right of his testator or intestate. The same mischief is to be prevented: the second suit to establish the waste of the defendant executor or administrator, before any suit could be brought to charge his sureties, was as much intended to be dispensed with, in such case, as in the case in which the first judgment was obtained by any person in his own right. In the last case, the party obtaining the judgment, ' is authorized, *upon such return of the execution as is prescribed by the statute, immediately to commence a suit against the executor or administrator and his sureties, or either of them, to establish the waste of the assets; and, if the party entitled to the fruits of the judgment, in such case, is entitled to bring the suit, then, unless we disregard the decisions in Dykes v. Woodhouse, and several others in this court, the administrator de bonis non of the intestate for whose estate the judgment was recovered (in the case before us) is the proper party relator, to bring this action.

X think the attorney general’s criticism too nice, — that though the statute is retrospective as to the judgment, it is prospective as to the execution issued upon it. The language, on examination, seems clearly to comprehend any execution issued on such judgments as were previously mentioned in the section.

As to the doubt which has been suggested, whether the administrator de bonis non must not make himself a party to the judgment, by an action of debt on it, or by scire facias, before he can sue on the administration bond; cui bono should he bring debt, or sue a scire facias on the judgment? He could have no new execution on the judgment he would obtain in either case, after the return of nulla bona on the execution, or the return equivalent to it, in the case before us. At common law, he might have the scire fieri inquiry, directing the sheriff to inquire by a jury, whether waste of the assets had been committed by the executor or administrator ; and, on the return that waste had been committed, he would have an execution de bonis propriis, to the extent of the waste found by the inquest: but the action of debt suggesting the waste, was found to be a more efficient mode of ascertaining the devastavit, and has in fact, superseded the scire fieri inquiry, and rendered it obsolete. That action is now dispensed with by our statute: and to compel the administrator de bonis non, or any other representative, to resort to the scire fieri inquiry, would produce all the delay intended to be avoided by the statute; *and still greater delay, if he must first make himself a party to the judgment by an action of debt, or a scire facias, before he could have the scire fieri inquir}', or the action of debt suggesting the devastavit, and thereby convict the executor or administrator of waste, before he can commence his action on the administration bond, to charge the sureties. In England, where the assets of the deceased person were administered under the eyes of the ordinary, no bond with surety was required of executors or administrators; and the scire fieri inquiry, on the return of the execution nulla bona, or the action of debt suggesting the waste, gave all the relief that could be required. But here, it was thought necessary to lay the foundation of the suit on the bond to„ charge the sureties, by bringing the action of debt suggesting the devastavit, before resort was had to the suit on the bond. That is now dispensed with by the statute in question; and a suit on the bond, is given against the executor or administrator, and his sureties, or either of them; in which as broad a defence may be made against the charge of waste committed by the executor or administrator, as before, on the action of debt suggesting the waste.

TUCKER, JP.

In deciding this case, I shall take the case of Dykes v. Woodhouse to be unquestionable. Certainly, it ought not to be questioned except by a full court; and I should regret to see it disturbed, because it is better that the question of practice should be considered as settled, particularly, as the decision is in perfect conformity with the rights of parties and the convenience of suitors. By that decision it is declared, that an administrator de bonis non with the will annexed, may maintain an action of debt on a judgment obtained by the executor of his testator; which accords with the doctrine of Bru-denet’s case, 5 Co. 9, that the executor of an administrator who recovers a judgment, isr not entitled to have execution of that judgment: and the converse of the proposition is equally true, as to the administrator of an executor. Now, in this case, *the original judgment having been obtained by Moncrief Hill administrator of 'Robert Hill, his executor or administrator could not enforce the judgment. This, I think, is conceded by all the authorities. Eor, anteriour to the statute of 17 Car. 2, ch. 9, | 2, though it was decided, that the administrator de bonis non could not enforce the judgment, yet it was admitted, that the debt belonged to him, and not to the executor in whose name it was obtained, and that he might begin de novo, and recover it. Hence it was that the defendant in the judgment, was, in that state of things, entitled to his audita querela to be discharged from the execution of the administrator of the deceased executor. From these positions it is clear, that, in this case, the executor or administrator of Moncrief Hill the first administrator, could not enforce this judgment, or bring debt upon it. He, of course, could not have brought an action of debt suggesting a dev-astavit, against the administratrix. But our statute which gave the action on the administration bond at once, without the necessity of the intervention of an action of devastavit, was obviously designed merely to substitute the former for the latter. It is very certain, that it did not design to give the action on the administration bond to one who was not entitled to bring debt for the devastavit. And I think it equally clear, that it designed to give this action on the bond to all, who had a right to bring debt suggesting a devastavit on the original judgment. If it were not so, then, while the administrator of the executor was proceeding on the bond according to the construction of the statute contended for, the administrator de bonis non would be proceeding in debt for the devastavit, according to the decision of Dykes v. Wood-house. Thus, two suits for the same demand would be in a course of prosecution by different persons. This, it seems to me, is a complete reductio ad absurdum; and compels us to abandon Dykes v. Wood-house, or to give an equitable construction to the statute. The latter is, certainly, to be preferred; since the legislature can scarcely be presumed to have intended to ^refuse the remedy to him who had the right, and to give it to him who had it not. It is admitted, indeed, that the executor or administrator of Moncrief Hill is expressly within the words of the act; “the executor or administrator of the person who recovered the judgment;” and, on the other hand, the administrator d'e bonis non is not so. But as the statute obviously meant to give the remedy to the executor or administrator of the person entitled to the judgment, it is doing no great violence to its language (when we further its intention) to refuse the remedy to the person not entitled to the judgment, and to give it to him who is. Therefore, I am of opinion, that there was no error in the institution of the action at the relation of the administrator de bonis^non.

Nor do I think the objection valid, that the issue and return of the execution was a*nteriour to the enactment of the statute. The statute is clearly retrospective as to the judgment, as well as prospective. I see no reason for any difference, in this regard, as to the execution; and I do not perceive any absolute necessity for construing the words prospectively only. The construction of the statute concerning citizens (in Barzizas v. Hopkins, 2 Rand. 276,) shews, that the present term are, shall be interpreted ma3T be, so as to embrace future cases. But a like freedom is not necessary here: for the words, “and upon execution issued it shall be returned” seem to me to refer rather to the fact of the existence of such return, than to the time when it may have been made.

The last objection must also be overruled. The sheriff returned that he could find “no unadministered or unincumbered effects.” He could find neither one nor the other. How then from this negation as to both, can we infer the affirmative as to either? If we cannot; then the return is equivalent to a general return nulla bona.

Judgment reversed.  