
    Judge of Probate, Appellant, v. Phipps et al.
    
    In a suit on an administrator’s bond by a distributee of an estate, upon which the intestate of the defendant has administered, the breach must show waste by such deceased administrator, and a devastavit regularly established by suit and judgment, before a remedy can be had of the representatives of such deceased administrator.
    APPEAL from the circuit court of the county of Adams.
    This was an action of debt on an administration bond by the judge of probate for the use of Catharine Mahon, against the several defendants, one of whom, William M. Phipps, and Catharine Bower, who was not joined in the suit,executed the bond as administrator and administratrix of Adam Bower, deceased, and the other defendants executed it as her sureties. The bond and its conditions are in the usual form, and were set forth in the declaration. The declaration contained several breaches. 1st. That said administrator and administratrix did not return a true inventory to the probate court. 2nd. That the said administrator did not well and truly administer the goods and effects of said Bower, in this, that said Bower at his death as administrator of Arthur Mahon was indebted to said Catharine Mahon in the sum of $>10,000, which Phipps as administrator refused to pay, though assets to the amount of $50,000 came into his hands. 3rd. That said Phipps as administrator of said Bower became possessed of assets to the amount of $50,000, but neglected to administer the same legally in this, that he failed to pay a decree rendered against him as administrator aforesaid, by the probate court of Adams county, for $4,778 79, with interest and costs, &c., in favor of said Catharine Mahon. 4th. That the High Court of Errors and Appeals of Mississippi adjudged that said Phipps as administrator, &c. was indebted to the said Catharine Mahon in the sum of $6,000, yet he failed to pay the same. And lastly, that said administrator and administratrix did not at any time make a just and true account of their administration to the probate court, or pay over to such persons as were entitled to the same, the assets, retaining the sum of $10,000 in their hands.
    
      To this declaration, all the defendants, except Phipps, (who never plead) filed a demurrer, assigning twenty-one especial causes. The demurrer was confessed, and leave given to file an amended declaration. In pursuance of which, the plaintiff amended, by adding a count, assigning a breach in addition: That Adam Bower in his life time obtained letters of administration upon the estate of Arthur Mahon, and returned an inventory, and administered the same by selling the goods and paying the debts of his estate; but that said Bower departed this life without having rendered his final account of said estate, and without having made distribution of the residue in his hands; and that Catharine Mahon, who was entitled as distributee to the residue, after the death of Bower, cited Eliza Bower and Phipps, administratrix and administrator of Adam Bower, to settle the final account of Adam Bower’s administration of Arthur Mahon’s estate, and to distribute the residue by paying over to the said Catharine her distributive share ; and that such proceedings were had in said court, that the said William M. Phipps, as administrator of Adam Bower, by a decree, on appeal of the high court, and by the final decree of the probate court, pursuant to said judgment from the high court, was ordered and decréed to pay to the said Catharine Mahon, $4,778 79, with interest, &c., yet he wholly refused to pay as desired, although sufficient assets came to his hands, and although often requested.
    To the declaration as thus amended, the same demurrer with the same causes were considered as filed, which causes were: 1st. That plaintiff doth' not show any legal injury to him or his use. 2nd. No averment of any proceeding in probate court to make defendants discharge their duty as administrators. 3rd. Non-payment of debt cannot be set forth as a breach of the bond. 4th. No devastavit shown or averred. 5th. No examination of administration accounts averred, or decree to distribute. 6th. No judgment properly set forth by wjhich administrators were bound to pay. 7th. Not shown whether particular judgments were for demands against Bower’s estate, or against administrators on their own contract, nor any execution or return of nulla bona thereon set forth. 8th. The second breach and all others should have been assigned in a suit against Bower’s administrators, on his adm-injstration bond on Mahon’s estate. 9th. The claims said to be unpaid are not distinctly- set forth. 10. Not shown that if Bower had any effects of A. Mahon he was ever cited or otherwise rendered liable. 11th. No judgment against A. Bower in favor of C. Mahon avérred. 12th. Mahon’s estate is still liable for the debt, and not Bower’s estate. 13th. Not averred that the amount claimed can hot be made of Mahon’s estate, nor that Bower did not properly administer it. 14th. No order of court is shown for putting, the bond in suit. 15th. No endorsement made at whose instance and for .whose use suit is brought. 16th. Non-joinder of defendants. 17th. The administrator of Bower de bonis non of Mahon has a right to "the balance, or the securities on Bower’s administrator’s bond on Mahon’s estate, are liable. 18th:. No breach of. the bond not to paya distributive share. 19th. The bond sued on not a statutory bond.. Averment of waste by one administrator not sufficient.
    This demurrer was sustained by the court and judgment rendered against the plaintiff, from which the appeal is prosecuted to this court.
    M’Murran for appellants.
    - 1st. As to the nonjoinder of parties, one of the obligors, Mrs. Bower, is not joined in the action. It was riot necessary to do so. The bond is a joint arid several one under ■ our laws, and is so (if we recollect aright) upon the face of it. Besides, by an act of the legislature passed in 1831, the holder of any bond, covenant, bill or promissory note, signed by two or .more persons, can sue any. number of the parties. See Hut. and How-. Digest. 594} sec. 28.
    2d. It is also contended that an administrator de bonis non, of Arthur Mahon, would be competent to sue for the fund claimed by the plaintiff’s usee Mrs. Mahon in this case, 'and that she cannot .legally claim the money either as a creditor or distributee oí Arthur Mahon’s estate. This position cannot be sustained. The declaration (the averments ot which are admitted'by the demurrer,) shows that Bower as administrator had entirely administered Arthur Mahon’s estate.. There is no claim made to any chattels or effects of Arthur Mahon in specie. On the contrary, we claim a balance iñ his hands generally.. An administrator de bonis non therefore could not touch it. The- law on this subject is.familiar to every one, and to show .a reference.to the principle, we will barely cite 3 Bac. Abr. 440, ’41, ’42. Title “ Executorá and Administrators.” : ■ .
    But further, the declaration shows that Phipps, administrator of Bower was decreed by the' probate court of Adams county to pay this amount, remaining in the hands of Bower at his decease, as administrator.for Mahon, to Catharine Mahon; and under that decree,.which was in pursuance of a review of that case in the high court, she has her remedy upon Phipps’s administration bond, he having failed.to,pay it over. 1 How. 275.
    
    In connection with this point it is also contended that the remedy of Mrs.'Mahon is a suit against the securities of Bower, on his administration bond as administrator of Mahon?s estate. This position cannot be sustained. No. complaint is made against Bowen He died ‘before he could entirely close his administration: the claim is judicially established - against his estate. What a farce it would be in the administration of justice if Mrs. Mahon could be obliged to resort to the administration bond of Bower, who'administered faithfully till ,his death; and recover of his securities, and these securities upon payment of the 'money be compelled to sue on Phipps’s bond of administration, as creditors for the amount they paid. We have pursued a shorter, and- we conceive, a more legal and correct course in the mode we have adopted.- ' .
    3d. But again. It ,is'contended generally that none of the breaches are well assigned. ‘ Now as-to the,first and last or fifth breach as set forth'in the original déclaratión, they ar.e expressly decided by this court to. be well assigned, in the case of Judge of Probate, case of Harmon v. Thompson, reported in 2 Howard’s Rep. 808. These breaches are, inore, full and complete'in the present case than they were in the case just referred to. . So the second breach is unquestionably a good one. What could be a greater breach of the administration bond than the allegation that the administrator did not administer the .assets legally; in this, that he received fifty' thousand dollars of assets, and refused to pay the usee in this case ten thousand .dollars,.which adniinis-trator’s intestate was indebted to her at the time of his decease. This breach is definite and clearly averred by the conditions of the bond.
    The third and fourth breaches shew that by the judgments of two several courts the administrator was decreed to pay to Mrs. Mahon certain sums of money, which he failed and refused to do, although he had sufficient assets for the purpose. It cannot be 'conceived how the conditions of an administrator’s bond become forfeited, and how a recovery can be had on it if such assignments of breaches be not sufficient. But the decisions already referred to fully sustain the legal accuracy and sufficiency of these breaches.
    Besides, what objection can be urged against the new breach contained in the amended declaration? It sets forth that Bower as administrator of Arthur Mahon died before he made his final settlement of administration in the Probate court, though after he had administered the estate down to that final settlement. That his (Bower’s) administrators were cited by Mrs. Mahon as the sole distributee of Arthur Mahon, to settle the same in the probate court, where the administrator of Bower appeared, a decree rendered against the administrator, an appeal to this court, and another decree in the probate court, (upon the reversal of the first) in pursuance of the judgment of this court, against the administrator for a sum, and which he has refused to pay over, though he has sufficient assets.
    For the sufficiency of such a breach as this, we will refer to no authority, for we cannot believe that any is needed. Here is a judgment of a court of competent jurisdiction set forth, on an allegation that the administrator has refused to pay it, and what more can be required to establish a forfeiture of the conditions of the bond, if the proof should correspond with the allegations. Surely this is a sufficient allegation of a devastavit. Our legislature dispenses with a suit in the first instance against the administrator to establish it, as is required in England, and according to the common law. Hut. and How. Dig. 419, sec. 115.
    And this same statute is an answer to the objection that there must be a return of nulla bona against the administrator, before an action can be maintained on his bond. The statute has dispensed Avith this proceeding, and the bond becomes forfeited without a previous resort to any such proceedings.
    If it should be contended that a refunding bond should have been' tendered by the usee in this case, Mrs. Mahon as distribu-tee of A. Mahon’s estate, the first answer we have is that she claims also as a creditor of Bower’s estate; but further, the court of probate has decreed this share to be paid over, creditors have all been paid, no bond has been required in the decree of the probate court, and in a suit on the bond the court is precluded from inquiring whether such a bond was necessary, or ought to have been furnished.
    Quitman on the same side.
    Montgomery for appellees.
    The first and most obvious objection to the first and fifth assignments of error, is, that the usee does not show such an interest in the matter as authorizes him to complain of the nonperformance of the conditions alleged in said assignment to have been broken. And although the breaches may be well assigned, the plaintiff is not entitled to recover, because the usee is not injured by such forfeiture of the bond. 1 Howard’s Reps. 87.
    The statute only authorizes the bond to be put in suit, (when forfeited,) “ at the request of any party grieved by such forfeiture.” If the usee was not grieved by the forfeiture complained of, the law did not authorize the judge to put it in suit, and no action for such forfeiture can be maintained. How. and Hutch. 396, 339. 1 Cowan Rep. 189. '
    The third, fourth, and amended breaches do not state such facts as amount to a breach of the bond. The third breach states that the probate court of Adams county decreed that the administrator should pay the usee a sum of money, and that assets sufficient came to his hands.
    Our conclusive answer to this breach, in my view of the law, is, that the decree of the probate court was a nullity, for want of jurisdiction to make a decree. The jurisdiction of the probate court is limited and peculiar, and if it had jurisdiction to render such decree, the declaration should have averred the existence of every circumstance necessary to confer jurisdiction.
    
      The amended declaration undertakes to set out every material fact which transpired to give jurisdiction to the probate court, but it is conceived, has shown a .case in which that court had not jurisdiction.
    From the amendment it appears that A. Bower was administrator of Mahon’s estate, and that Phipps, as administrator of Bower, was called on to settle the accounts of Bower’s administration of Mahon’s estate, and that on such settlement the court decreed that Phipps, as administrator of Bower, should pay the usee her distributive share of Mahon’s estate. The non-compliance with this decree is. the alleged breach of the. condition of the bond.
    Now the amount due by Bower to the distributees of Mahon’s estate, was a debt of no higher dignity', and not differing in its nature in the slightest legal particular from an. account for goods due to any body else. If any of Mahon’s estate was left unad-ministered, it would not have come legally to the hands of Phipps, but must have been committed to an administrator de bonis non. Phipps, as administrator of Bower, was not administrator of Ma-hon, and as regarded Mahon’s estate, the probate court had no jurisdiction over him. It is no where made the duty of an administrator to settle the accounts of his intestate as administrator of other estates. The condition of an administrator’s bond stipulates that the administrator shall do it himself, and nothing is said about his administrator. See G-ildart’s heirs vs. Starkie, 456 — . 7 — 8. 1 Howard’s Reps., 450. . .
    But when is an administration bond forfeited so that an action may.be maintained. It is not every neglect of duty on the part of an administrator that will subject him to an action op the bond. He must be guilty of some act of mal-administration, either wasting, concealing or converting the effects of the estate, to his own use so as to deprive those who are entitled to them of the benefit of them. •
    The plaintiffs have not shown a cause of action in their original declaration on this bond, if we admit the probate court, had the jurisdiction it has exercised, because it is no where averred that the administrators had .committed a devastavit.
    
    By the English authorities the mode of establishing a devas-
      
      tavit seems to have been different in the courts of -King’s bench and common pleas at one time; and to have undergone some important changes in both courts. The course of practice is now well settled that the administrator must be convicted of a devas-tavit before his securities on the bond can be resorted to. 1 Saun-der’s Rep. 21S, note.
    The same doctrine has been recognized and settled in Yirginia. 1 Wash. Rep. 31. 1 Munford’s Rep. 1, IS, 18,21. 3 Munford’s 548. 1 Hen. & Munf. 10. 1 Call, 289. 2 Munf. 24.
    The second assignment is simply the charge of neglecting to pay a debt. Although it is the duty of an administrator to pay the debts of the intestate, it is not a breach of the conditions of his bond to refuse. Besides he is at liberty to control every demand and cannot be considered at fault until the claim is established by judicial decision. 1 Salk. Rep. 315. 15 Eng. Com. Law Rep. 174.
    A creditor cannot sue on the bond, until he has exhausted his legal remedy against the administrator and convicted him of a devastavit. 1 Munford, 1; and 1 Wash. 31. It has been contended that our statutes have waived the English practice, which required that the administrator should be first convicted of a de-vastavit.
    
    The act of February, 1830, does not remove the objections. That act only provides for proceeding jointly or severally, by action of debt or scire facias, when the party desires to institute a suit for a devastavit. This action is against one administrator and the sureties, and therefore neither joint nor several; but it would not obviate the want of the preliminary steps to recover satisfaction out of the assets of the estate by judgment and execution, which must be resorted to, before the sureties are liable to an action. How. & Hutch. 417, sec. 111.
    The act of December, 1830, is less applicable to the case. In the first instance it only prescribes the construction which shall be given the act of 1821. This is a judicial function, and improperly assumed by the legislature. . The court must still construe the act of 1821, and it is conceived, will not change the construction in consequence of the dictation of the act of December, 1830. But if we admit that the act of December, 1830, is obligatory, it only dispenses with a separate suit to establish a devas-
      
      tavit. It does not dispense with the necessity of judgment de bonis testatoris, execution and sentence of nulla bona. How. & .Hutch. 419, sec. 115.
    The fourth breach assigned, is the non-payment of a judgment of the High Court of Errors and Appeals. This is also void for want of jurisdiction. The High Court of Errors and Appeals has no original jurisdiction; and if the judgment or decree was rendered on appeal from an inferior court, so much of the proceedings should have been set out as would have shown from what court the appeal was taken.
    The presumption of law in favor of the regularity and sufficiency of judgments, only applies to courts of general jurisdiction. Pleadings in courts of limited, special and peculiar jurisdiction must show any prerequisite to the exercise of jurisdiction, and it will be presumed that every thing which does not appear does not exist. And a declaration must state every matter which is necessary to be proved, with legal certainty. 7 Wend. 435. 4 John Rep. 2 92. 12 Wend. 473.
    No order of court has been averred, authorizing the suit on the bond. There must not only be a decree of the court commanding the administrator to pay a creditor the sum due him; but there must be an order of the court to put the bond in suit. IS Wen-dall, 492.
    Boyd, on the same side.
   Opinion of the court by

Mr. Chief Justice ShaRkbv.

This action is founded on an administrator’s bond given by de fendant Phipps, as administrator of the goods and chattels of Adam Bower, deceased, the other defendants being his sureties. In the original declaration, five breaches were assigned, and the defendants demurred.. The plaintiff confessed the demurrer and obtained leave to amend,. which she did by adding a sixth breach, and the defendants again demurred, which was sustained by the court, and it is now assigned for error that the court erred in sustaining the demurrer.

Our remarks will be confined to the amended breach alone, for although counsel have gone into an investigation of the whole case, wo cannot think that the original declaration is now properly before us, further than it is necessarily made a part of the amendment; the plaintiff confessed that it was bad, and. we are not disposed to gainsay the confession.

It seems from the amended breach, that Bower, in his life time, was the administrator of the goods and Chattels of one Arthur-Mahon, and proceeded regularly with the. administration by paying debts, &c. until his death. ■ He died without having made a final settlement and distribution. The plaintiff, who was entitled to a distributive share of Mahon’s estate, cited the administrators of Bower to make a final settlement of Bower’s administration before the probate cqurt, and to distribute the residue of Mahon’s estate. They accordingly appeared, and the court .made a decree against'them to distribute,' from which an appeal was taken, and the judgment affirmed, .and they - were finally decreed to pay to the plaintiff, as distributee, the sum of @4,778. The breach concludes by averring sufficient assets for that purpose and charges a devastavit. This is the substance .of the breach, and the question is, is it sufficient fio justify a recovery in this action against these defendants ?

It must be borne in mind that some of these defendants are mere sureties in the bond given by Phipps as the administrator of Bower. The extent of their liability must be determined from the nature of their undertaking. What was the nature of their contract ? It was that Phipps should truly, administer the goods and chattels of Bower ; that he should make and exhibit an inventory of the effects; that he should account, when required, and finally make distribution of the surplus, after paying the debts, to those entitled to it.. Their undertaking was, that he should lawfully administer Bower’s estate;. not that he should administer an estate which Bower might have held as trustee. Then, before they can be liable, some mal-administration of the .estate of Bower must be shewn. Creditors of a, deceased person have a lien on his property for their debts, ánd since the passage of the statute for that purpose, a devastavit may be averred and proved against the administrator and his sureties in the first instance. The nonpayment of a debt; therefore, when sufficient effects had been received, would be an act of mal-administration, for which an action might be sustained against the administrator and his sureties, but it must be such a debt as he was hound to pay out of the estate. Was the claim of the plaintiff one of that description ? The breach does not shew it in that light. The plaintiff claims, as distributee of Mahon, on whose estate Bower, in. his life time, was administrator. Bower’s individual property was not liable to Mahon’s distributees, until he had committed an act of devastavit and a judgment thereon against him. The breach does not aver any such proceeding as this, or any proceeding from which such a conclusion can be even drawn. It avers that Phipps, on a settlement, was decreed to pay to the distributee, $4,778. The conclusion is, that this was to be paid out of the estate of Mahon.

In the preceding part of the breach it is averred that Bower died without paying over the residue to the distributees. The inference is then that there was a residue, and that out of that residue Phipps was ordered to pay. This presumption is rebutted alone by the fact, that as administrator of Bower he could not have rightfully had possession of the property of Mahon, and yet if it had been converted into money, he might have had such possession. The ambiguity of the breach shows its defects. Such, however, must have been the decree mentioned in the breach, for the probate court had no power to decree a payment out of Bower’s estate. Mrs. Mahon was a distributee of Ma-hon’s estate; the probate court could only decree that she receive her share out of Mahon’s estate. If that estate had been squandered, it was an act of mal-administration which made Bower and his sureties personably liable, but such liability could be fixed only by a suit on their bond. If that had been done, then Bower’s estate would have been chargeable, and this action could be sustained. But as it is, the plaintiff seeks to recover out of Bower’s estate, a debt for which it is not yet legally liable. It may be made liable it is true, but this has not been done. So far therefore from these defendants being bound, the administrator would not even be authorized to pay her out of Bower’s estate, and of course there has been no mal-administration to make his sureties liable. A devastavit is suggested, it is true, but it is a devastavit of Bower’s estate, and surely a devastavit of Bower’s estate cannot entitle the plaintiff to recover of these defendants individually, her distributive share of Mahon’s estate, which has not been wasted, or at least of which we have no evidence.

To make the matter plain, suppose Bower were still living, how would the plaintiff make him individually liable for her distributive- share? would an action for money had and received lie ? It would not. The receipt of assets and the wasting of them, constitute conditions precedent to the individual liability of an administrator. If he were living then, and refused to pay or distribute according to the decree of the probate court, the plaintiffs’ remedy would be on his bond for a breach of the condition. Of course his estate cannot be made liable except in the same manner. The object is to make his individual estate liable for the distributive share. His death does not change the mode of doing so, for it can only be done in one way, and that mode is the same whether he be dead or living. These were conditions precedent to the individual liability of Bower, and so with regard to his estate; these conditions have not been performed, and there was consequently no legal liability on the administrator to pay out of his estate, and as the defendants only undertook that Bower’s estate should be legally administered, their bond is of course unbroken.

The breach was defective, and the judgment of the court below must be affirmed.  