
    Catlett and Others (Justices of King William County) v. Carter’s Executors,
    Friday, March 8, 1811.
    1. Administration Bond — Action against Sureties— WhatNecessary to Sustain. — An action against the sureties in an administration bond cannot be sustained on the ground that, after a verdict, judgment, execution, and return of “no effects,” against the executor or administrator, as such, (the verdict being “that he had not fully administered, but had assets to satisfy the debt,”) the defendant died, and his estate having been committed to the sheriff, the county court allowed the judgment as a lawful claim against his estate, and directed the sheriff to pay it if assets should be in his hands; and it appeared by the sheriff's return that no such assets existed.
    2, Same — Same—Same.—It seems, that the executor or administrator must be convicted of a devasta-vit, by a verdict in a second suit, finding that “he has wasted the assets.” or "has eloigned, disposed of, and converted the same to his own use,” before an action can be sustained against the sureties. 
    
    The appellants (for the benefit of John D. Watkins, administrator de bonis non of John Watkins, deceased) brought an action of debt in the district court of Williams-burg, against Charles Carter and William D. Claiborne, surviving obligors in an administration bond given by Judith Browne, with the said Carter and Claiborne '"her securities, upon her administering on the estate of William B. Browne, deceased.
    The declaration set forth the bond at large, and averred that Judith Browne had broken the conditions thereof in this, that she “did not, nor hath, well and truly administered, &c. but hath misapplied and wasted, &c. in not paying to William Clayton, in his life, executor of John Watkins, or to the said John D. Watkins, administrator, &c. the amount of a judgment recovered in the county court of King William, at the May session of that court in the year 1795, by the said William Clayton, executor as aforesaid, against her as administratrix,” for a debt of her intestate; (setting forth the judgment;) that she had assets to satisfy it, but wasted, eloigned, disposed of, and converted the same to her own use; that she afterwards died; and, no person choosing to administer on her estate, it was committed to the sheriff of King William; that the said ,'ohn D. Watkins, as administrator, &c. exhibited his claim to the court of that county' against her estate, by whom it was allowed and directed to be paid by the sheriff, “if a sufficiency of her estate should be in his hands for paying the same and all other claims; or, if there should be an insufficiency, the court reserved to themselves the power of proportioning the assets among the claimants;” that the sheriff made return to the court, that “he could not find any estate of Judith Browne, deceased, and had no reason to believe or suspect that she had any estate;” whereby action accrued, &c.
    The writ being executed on the defendant Carter, he appeared, and demurred to the declaration, and the plaintiffs joined in demurrer.
    On argument, the court was of opinion “that the demurrer, admitting the fact of waste charged in the declaration, ought to be overruled; but it appearing to the court that the question whether a verdict convicting the administratrix of a devas-tavit in a suit suggesting such *devastavit was requisite previous to this suit, (which was the question intended to be submitted,) could not, by the present pleadings, come fairly before the court, but, being a matter of evidence, would be brought on, more properly, after a plea, by an instruction to the jury on the evidence; it was ordered, that the defendant’s counsel have leave to withdraw his demurrer; and thereupon the defendant pleaded the general issue, to which the plaintiffs replied generally'.”
    On the trial of the cause, the plaintiffs gave in evidence the bond and records referred to in the declaration, with the copy of an execution which issued on the original judgment against Mrs. Browne, as administratrix, and a return thereupon of nulla bona. The pleas of the adminis-tratrix to the original suit were, payment by her intestate, and plene administravit, •on which issues were joined; and both were decided against her by verdict; the jury, upon their oaths, saying, “that the said Judith Browne, at the time of the exhibition of the bill of the said plaintiffs, had not fully administered all the goods and chattels which belonged to the said William B. Browne at the time of his death in her hands to be administered, and that the said Judith, at the day of the exhibition of the said bill, and ever after, had goods and chattels, which were of the said William B. Browne at the time of his death, in her hands to be administered, wherewith she could have paid the debt in the said bill specified; and that the said defendant’s testator” (meaning intestate) “did not pay in his lifetime the debt in the declaration mentioned.” The judgment was dated the 15th of May, 1795; the fieri facias the 30th of June following. The order of court, committing the estate of Judith Browne to the hands of the sheriff, was made in October, 1802; and that allowing the claim of John 11. Watkins, administrator, &c. in February, 1803. It also appeared, from a copy of a record laid before the county court when the claim was allowed, that, on the x'10th of June, 1797, a suit was brought in the district court of Williamsburg, on the same administration bond now in question, (for the benefit of William Clayton, executor as aforesaid,) against Charles Carter, as security for the administratrix, and was determined in favour of the defendant, (May 5, 1802,) upon a question submitted to the court by the jury, whether the defendant, “as a security in the bond for the due administration, &c. was liable to the plaintiffs in this action, before a judgment obtained against the administratrix in an action against her, charging a devastavit.”
    Upon this evidence, (being all that was exhibited in this cause,) the defendant’s counsel moved the court to instruct the jury, “that it was necessary for the plaintiffs to produce the verdict of a jury, convicting the administratrix of a devastavit, in a suit for that purpose against her, before this suit can be maintained; and that, unless the plaintiffs produced such conviction, they should find for the defendant:” and the court instructed the jury to that effect; to which opinion of the court the plaintiffs excepted. The jury found for the defendant: judgment was rendered on the verdict; and the plaintiffs appealed.
    Wickham, for the appellants,
    relied on the following points:
    1st. That, after judgment against the administratrix, as such, execution issued, and return of nulla bona, she having died intestate, and no person administering on her estate, the creditor had a right to proceed, immediately, on the administration bond, against her sureties. In the case of Gordon’s Adm’rs v. The Justices of Frederick,  it -could not have been intended to require a second suit, suggesting a devastavit, in all cases. The inconvenience of such a rule would be extreme, and, in some cases, the bringing the second suit impossible; as where an executor has left the state, on purpose to prevent it. The ‘authorities collected by'Serjeant Williams, in his note (8) to 1 Saunders, 219, show the doctrine on this subject very fully, and do not justify the conclusion that the action suggesting the dev-astavit is the only way in which it can be fixed upon the executor. But,
    2dly. If further proceedings were necessary, the order against the sheriff (being the only step that could be taken in this case, before the suit on the administration bond) was sufficient.
    3dly. The court’s direction to the jury was clearly erroneous ; since an executor or administrator, by suffering judgment to pass by default, or on demurrer, might always prevent the plaintiff from putting the matter in issue before a jury; without which there could be no verdict convicting the defendant of a devastavit.
    4th. The plea of the general issue, (in so manj' words,) without expressing what plea was intended, was informal and insensible; and, therefore, there should be a repleader. 
    
    Call, contra. I admit the plea is informal ; but that is no ground of repleader.
    1. The point is settled, that there must be two suits, before the suit against the sureties. It is contended that this has been sufficiently done. But the second suit required is to establish the point, dev-astavit, or not. Here the proceedings (as to the sheriff, &c.) have only shown that Judith Browne had no property of her own; but not that she wasted the property of her intestate.
    2. The right of Watkins, the administrator de bonis non, to sue on the judgment obtained by Clayton, the executor, is also questionable. In 6 Bac. 112, (Gwill. edit.) it is laid down, that where an executor obtains a judgment, and dies, the administrator de bonis non cannot sue out a scire facias, but must bring a new trial. 
    
    *3. Another point makes the plaintiff’s case very defective. A judgment against an executor does not bind his security, who may still controvert the devastavit,  Therefore, in this suit, the plaintiffs were bound, in the first place, to prove that, once, there had been assets; then the security would have been bound to prove what had become of them; that they had been expended in due course of administration ; but this the plaintiffs have not done.
    4. The judgment for the defendant, Carter, in a former action for the same cause, is a bar to this action.
    Wickham, in reply. The last point is not law. This suit was for a new cause of action accruing after that judgment. According to Mr. Call’s own doctrine, the right of action against the security accrues only by the judgment in the second suit against the executor. Here, after the judgment for the defendant had been given on the ground that the action against him was premature, we obtained a judgment against the estate of the administratrix, which judgment became the gist of the present action. The court of appeals cannot have intended that where a decree in chancery has been obtained for a balance against an executor, on a settlement of his administration account, to be paid de bonis propriis, a second suit should be necessary, before the creditor can sue the securities. In this case, the order was that the sheriff should pay out of the estate of Judith Browne. We did, therefore, what was equivalent to the second suit.
    The federal court, in the case of Gran-bury v. Hamilton, did indeed decide that a judgment against an executor was not binding on his securities; but- certainly it is prima facie evidence, and of itself sufficient, if not controverted.
    
      
       AdministrationBond. — See, on this subject, mono-graphic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6; mono-graphic note on “Oficial Bonds” appended to Sang-ster v. Com., 17 Gratt. 121.
    
    
      
       Same — Action on — What Necessary to Sustain. — A judgment against a personal representative is necessary before a suit can be brought on his official bond. Foot-note to Call v. Ruffin, 1 Call 333.
      The principal case was cited in Spottswood v. Dandridge, 4 Munf. 291. See also, foot-note to Gordan v. Frederick Justices, 1 Munf. 1.
    
    
      
       Quaere, whether there may not be some exceptions to the'rule? — Note in Original Edition.
    
    
      
       See Rev. Code, vol. 1, p. 167; also vol. 2, p. 120.
    
    
      
       1 Munf. 1.
    
    
      
       See the case of Kirtley v. Deck, S H. & M. 388.
    
    
      
      3) JtrnGJS Brookio asked Mr. Call If this point had not been decided otherwise in the case of Back-house v. Tabb, in the federal court; to which he answered “yes; but it never has been determined in this court.” — Note in Original Edition.
    
    
      
       Granbury v. Hamilton, in the federal court; a case not reported.
    
   *Wednesday, March 27th.

The Judges, BROOKE, TUCKER, and FLEMING, (ROANE not sitting in the cause,) pronounced their opinions.

JUDGE BROOKE.

Though I do not entirely subscribe to the opinion of the district court, delivered in its instruction to the jury in this case; j'et, confining that opinion to the subject matter to which it related, I think it was correct enough. The order obtained in King William court, upon the motion of the plaintiff against the sheriff of that court, to whom administration of the estate of Judith Browne had been committed, and the return of the sheriff thereon, “that no estate of the said Judith Browne could be found,” was certainly no evidence of her having wasted the estate of William B. Browne, her intestate, to charge her secu-. rities in this action. I am, therefore, of opinion, the judgment of the district court must be affirmed.

JUDGE TUCKER. I am of opinion that the judgment is perfectly correct.

JUDGE FLEMING.

It appears to me there is no error in the judgment of the district court; it being sustainable on two grounds; 1st. The declaration, according to former decisions of this court, being uncertain and insufficient to maintain the action ; and, 2dly. There is no evidence of a devastavit on the part of the adminis-tratrix of William B. Browne; without proof of which the securities were not responsible, nor liable to an action on the administration bond: and no less proof than the verdict of a jury is sufficient to convict an executor or administrator of a devastavit, according to the decision in the case of Gordon’s Adm’rs v. The Justices of Frederick, which was founded on principles laid down in the case of Call v. Ruffin ; and, therefore, the instruction of the court to that effect, as stated in the bill of exceptions, was correct and proper.

I am of opinion that the judgment be affirmed. 
      
       1 Munf. l.
     
      
       1 Call, 333.
     