
    James E. Black et al. vs. Simeon C. Barton, Executor of Felix W. Baird, deceased.
    If an executor, against whom, as such, various judgments have been obtained, use the assets of the estate of his testator in the payment of the junior judgments against him as such executor, leaving the eldest judgment unpaid, he will be guilty of a devastavit; and will be liable to a proceeding against him by scire facias, as such executor, to subject him to the payment de ionis propriis of the judgment recovered against him as executor and thus left unpaid.
    In such case the scire facias should state what amount of assets had come to the hands of the executor, as he would not be liable beyond that sum.
    The executor may plead to such scire facias notwithstanding the former judgment against him, plene administravit; and will be discharged if he can show a full and proper • administration of the estate; such plea will not, however, be supported if there has been a misapplication of assets.
    In error, from the circuit court of Hinds county; Hon. John H. Rollins, judge.
    On the 9th day of June, A. D. 1841, the following scire facias issued from the clerk’s office of the circuit court, viz.; “ To the sheriff of Hinds county, Greeting: Whereas in our circuit court of said county, on the 27th day of June, 1837, by the consideration' of said court, James E. Black and John Robinson, merchants and partners, trading as Black & Robinson, recovered against Simeon O. Barton, executor of the last will and testament of Felix W. Baird, deceased, the sum of three hundred and twenty-seven dollars sixty-four cents, for the damages which they have sustained by reason of the non-performance of a certain promise of assumption by the said testator to the said plaintiffs lately made, with interest on said sum at eight per centum per annum from the said 27th day of June, in the year of our Lord one thousand eight hundred and thirty-seven until paid, also the sum of $19,37 costs in that behalf expended, whereof the said defendant is convicted as appears to us of record; and whereas a fieri facias issued thereon to you directed against the goods and chattels of said testator in the hands of Simeon C. Barton, executor, returnable on the second Monday after the fourth Monday of October, 1837, which was returned into our circuit court of Hinds county, on the 6th day of November, 1837, that there were no goods and chattels to be found in your county whereby the above sums could be made, or any part thereof; and whereas, it having been suggested' to us that judgments obtained subsequently have been paid and satisfied since the rendition of said judgment: Now, therefore, we command you to make known to the said Simeon C. Barton, executor of the estate of Felix W. Baird, deceased, to be and personally appear .before the circuit court of Hinds county on the 3d Monday of June, 1841, to show cause, if any he can, why the judgment obtained against him as executor of said Felix W. Baird, should not be made up against him, and execution thereon issue against him for the amount of said judgment, damages and costs, because of his paying off and satisfying junior judgments rendered in the circuit court of said county, which are of record in said court, to the detriment and prejudice of said plaintiffs’ judgment. Witness, &c.”
    A demurrer was filed to this scire facias, for the reasons that it did not show a sufficient ground of a devastavit; was not' formal ; or in accordance with the statute. The court dismissed the scire facias, and the plaintiffs therein prosecute this writ of error.
    
      Davenport and Greaves, for plaintiffs in error.
    & C. Barton, for defendant in error.
    The action of debt, or sci. fa. suggesting a devastavit against the principal only, or principal and securities in the bond until the whole penalty thereof, &c., be recovered, is given to creditors of deceased persons against their legal representatives. See How. and Hutch. 417, sec. 111.
    In England, since the statutes of mortmain, ‘the sheriff, after failing to make money out of property of decedents supposed to be in the possession of the legal fiduciant, was then ordered to hold an inquisition, which, if found favorable to the plaintiff, the representative was cited or noted to-attend court on the return of the inquest, and show cause why execution should not be had against him, if not enough, to the amount of inquest found, suggesting a' devastavit, that the defendant eloigned, sold and to his own use converted and disposed of decedent’s estate, &c.; and on return thereof into court, the - defendant might tender an issue, &c. 1 Saund. R. 304.
    In England assets are applied, 1st. To the payment of funeral expenses and probate of the will or of letters of administration. 2d. Those due to the crown by record or specialty. 3d. Debts created by statute. 4th. Debts of records in general. 5th. Debts due by specialty, and 6th. Debts; due by simple contract. And if the legal representative pay those of a lower degree first, on a deficiency of assets he must pay those of a higher degree out of his own estate. Toller’s Law of Executors, 258. Judgments of the like kind have no priority, and the executor may pay which he pleases first, and on sci. fa. against him, may plead fully administered," and show that the assets are exhausted in paying debts of a higher degree. Toller’s Ex. 264, 267.
    Our statute requires the expenses of tíie last sickness, including the doctor’s bill, to amount of $25 and funeral expenses, to be first paid. See H. & H. sec. 80, 107, Probate Laws. Also debts due the United States. See Ingersoll’s Abr. 156, 564; and 2 Cranch, 358, in case of United States v. Fisher.
    
    The above only are privilege claims, and all other debts may be properly classed on an equality, leaving the executor here to pay which he pleases, as it does in England of judgments of the like kind.
    A sci. fa. is a judicial writ, and in law is an action. See 2 Saund. R. 6, 71, and 1' How. R. 267, 271. All actions should be certain to a common intent, so that the defendant may plead an issuable plea, knowing with certainty what he is called upon to answer.
    The sci. fa. in the present suit suggests that the defendant, as Baird’s executor, has paid a younger judgment than the plaintiffs’, and that it is a devastavit. A younger judgment may have been paid, founded on. a privilege claim, or on an older account than the account on which the plaintiffs’ judgment is founded, or a younger account or note, and yet no devastavit committed. Or, supposing the estate be insolvent and in the hands of commissioners, the payment of a debt by the executor would not render him liable to pay thereby other debts out of his estate.
    I have been unable to advert to a single case that will support the plaintiffs’ action where the laws are similar to ours. I am yet to learn that the payment of just judgments, whether older or younger, against an executor as such, in Mississippi, is wasting the decedent’s estate, when all privilege claims have been previously settled.
    A devastation may be defined to be the legal receipt of effects of decedent’s estate, and the failure to make a legal disposition thereof in due time.
    There is another cause of error assigned; but being only a technical one, I shall pass it lightly over. It is the duty of the .pleader, when making a previous judgment the foundation of a new action, to declare that the previous judgment is neither reversed, satisfied or annulled, but remaining in full force ; which the sci. fa. in the present case does not state.
   Mr. Justice Clayton

delivered the opinion of the Court.

This was a scire facias against Barton, as the executor of Felix W. Baird, deceased, to subject him to the payment of a judgment de bonis propriis, which had been recovered against him as such executor. The ground relied on for rendering him liable, was that he had applied the assets of the estate to the payment of younger judgments, and left this unsatisfied. There was a demurrer to the scire facias, which was sustained by the court below, and the case dismissed.

The scire facias is informal in its structure, yet it is not so wholly defective as to authorize its entire rejection. The demurrer admits the facts charged. If they be true, the defendant committed a devastavit in the appropriation of the assets. By the laws of this State, if there were not assets sufficient to pay all the debts, it was his duty to have suggested the insolvency of the estate, and to have applied them ratably to their satisfaction. The judgment was notice to him of the claim, and it. was certainly not legal or proper to pay other judgments to the exclusion of this. This was a proper remedy equally with an action of debt upon the bond. 2 Lomax on Executors, 450; Hoggatt v. Montgomery, 6 How. 100.

The scire facias in this case, although it avers a mal-appropriation of assets, which is admitted by the demurrer, does not aver that enough came to the hands of the executor to pay the full amount of the judgment. It would not be right, therefore, to render judgment upon the sci. fa. for the full amount, because the plaintiffs are not entitled to judgment beyond the amount of assets. Neither is the defendant precluded by the former judgment from showing a full and proper administration of the estate; as he may still plead plene administravit. This is the rule adopted in Yirginia'under a statute from which ours is a copy. 2 Lomax, 452. Such plea, however, cannot be supported, if there has been á misapplication of assets.

The judgment will be reversed and cause remanded.  