
    Spotswood v. Price, Executor of Claiborne, &c.
    Tuesday, October 25. 1808.
    Executors and Administrators — Action against — Dev-astavit — Detinet—Judgment.* — If an executor
    obtain a judgment, for a debt due to his testator, against the administrator of the debtor, to bo levied of the goods and chattels of the intestate, &c. and, afterwards, bring an action of debt against the administrator, suggesting a devasta-vit, and declare in the detinet only, he cannot have judgment de bonis propriis of the administrator, but only de bonis testatoris.
    Same — Same—Same.—To entitle the plaintiff to a judgment de bonis propriis, in such case, he ought to declare in the debet and detinet.
    This was an appeal from a judgment of the District Court of Fredericksburg, affirming, with damages and costs, a judgment of the County Court of Spotsylvania, recovered by the appellee against the appellant.
    Robert Price, styling himself executor of Philip Claiborne, who was assignee of William Dandridge, Execuior of William Armistead, deceased, instituted an action of debt, suggesting a devastavit, in the County Court of Spotsylvania, against Alexander Spotswood. The declaration was in the detinet only, for 1181. Os. 4d. and 5 dollars and 12 cents; and charged that the plaintiff, theretofore, in the said Court, recovered a judgment against the said Alexander Spotswood, as administrator of William Daingerfield, deceased, for the above sum, being the debt and costs, to be levied of the goods and chattels of the said Dain-gerfield, if so much, &c. and concludes with an averment, that after the rendition of the said judgment, the defendant, (Spotswood, now appellant,) eloined, wasted, and disposed of, to his own use, the goods and chattels of his intestate, to the value of the debt and costs thereby claimed. The damages were laid at 1001.
    *The defendant (Spotswood, now appellant) pleaded, that he had “fully administered all and singular the goods and chattels, rights and credits of the said William Daingerfield, deceased, which had come to his hands to be administered ;” and concludes with a verification. To this plea there was a general demurrer and joinder. The County Court, on argument ol the demurrer, gave judgment, that the plea of the defendant, and matters therein contained, were not sufficient in law to bar the plaintiff’s action. Judgment was thereupon rendered for the debt in the declaration mentioned, and a writ of inquiry awarded to ascertain the damages. The Jury assessed them at 1181. Os. 4d. and 5 dollars 12 cents, the sum claimed in the declaration. Ror this sum and costs, judgment was entered against Spotswood, who appealed to the District Court; and the judgment of the County Court having been there affirmed, he again appealed to this Court.
    Williams, for the appellant.
    The first proposition for which I shall contend, is, that the declaration should have been in the debet and detinet, and not in the det-inet only. Upon looking into the authorities, one will be found,  where the plaintiff declared in the detinet only, and the judgment Was sustained: but that was after verdict, this is after demurrer; and the court will go back to the first fault in the pleadings, which is in the declaration.
    The most that -the plaintiff could recover, under such a declaration as this, would be a judgment de bonis testatoris; but this being a judgment de bonis propriis, it is error.
    The demurrer to the plea, in the County Court, admitted, that the defendant had fully administered, and therefore judgment ought to have been rendered in his favour. The plaintiff, instead of demurring, should have replied the judgment, by way of es-toppel; and not having done so, he cannot, upon a general demurrer,' use it as such.
    Another error was, that the damages laid in the declaration, were 1001. only, and the verdict and judgment were *for 1181. Os. 4d. and the costs of the former judgment. The plaintiff can only recover in damages; and he cannot obtain a judgment for more than he has laid in his declaration.
    Botts, for the appellee.
    If the action had been brought by Price, in his own . right, the declaration should have been in the debet and detinet. The recovery of the first judgment- by him, as executor, did not make the sum recovered due to him, which his own first declaration, by being in the detinet, supposed to be owing to his testator. If the recovery on a declaration properly in the detinet, should be understood to change the owing from the testator to the plaintiff, the judgment would not accord with its own declaration. In a late case, greatly laboured, in the Rederal Court, it was decided that the administrator de bonis non, was entitled to revive the judgment obtained by the first representative of the deceased. This, however, could not have been done, nor the law have been so established, if the debt was changed from the right of the testator to the executor, on the latter’s obtaining this judgment
    
      
      a) 3 East, 2, Hope v. Bague & Thompson.
    
   If I am wrong in this, still the fault is cured. Suppose a general demurrer had been filed to this deed — then the act of Assembly would have sustained it. The rule is, that upon a demurrer to the plea, you shall go back to the first fault; that is, the first fault that would be fatal on general demurrer; for by pleading, and not assigning specially, faults in form, under the reason of the statute, they are waived. To say that the defendant owes to the plaintiff, or to omit such allegation, has nothing to do with the “very right of the case.” Whether the defendant does owe to the plaintiff or not, is to be determined by the case made out in the declaration. If the case at bar shews that, according to law, the defendant owed to Price, it was unnecessary to state in terms that matter of legal inference. What single purpose could it answer? The books treat these, I know, as words of cabalistic import. Rules of practice are not like rules of property. The former should be moulded to attain justice. To omit the subscription of John Doe *and Richard Roe, was once held fatal to a declaration upon demurrer.

The judgment was only inducement, and was therefore properly set out by way of recital. The wasting was the gist of the action.

The declaration charged a wasting of the assets generally. The plea is fatally incorrect in confining itself to the assets which accrued before the rendition of the judgment in the declaration mentioned. It only answered a part of the plaintiff’s case, being an affirmative pregnant with a negative.

The declaration charged a waste of assets. Devastavit vel non, would have opposed a negative to an affirmative. JTully administered was answering an affirmative with an affirmative. A traverse was essentially necessary to make the plea issuable.

But the judgment was an estoppel to the defendant to deny assets to satisfy the judgment, or to affirm any fact incompatible with the receipt of sufficient assets. If the defendant had fully administered the assets, admitted by the judgment, in paying other debts, it was a devastavit. The declaration shewed the estoppel. A replication of it would only have been to shew it again. As to the damages, the defendant may get clear of them by paying the debt. The judgment is rendered for the debt to be discharged by the damages.

Tuesday, November 1. The President delivered the opinion of the Court: That the appellee, not having charged the appellant, in his declaration, in the debet and detinet, as he might, but in the detinet only, was not entitled to a judgment against him de bonis propriis, but de bonis testatoris only. Judgment reversed with costs, &c. and entered according to the principles of this opinion. 
      
      b) Rev. Code, yol. 1, c. 76, s. 27, p. 112.
     