
    The Ordinary vs. Hannah Carlile. The Same vs. P. Durant.
    A decree in the Court of Equity against an administrator, with the return of “nulla bona” on the fi. fa., (issued on the decree,) is “prima facie” evidence against the surety on the administration bond; and it is not necessary after such proceedings to have a decree of the Court of Ordinary before commencing actions on the bond.
    A surety of an administratrix, (whose intestate was the administratrix of an estate in her life time,) is not absolutely bound by a decree in the Court of Equity against his principal, for the devastavit committed on the estate of which his principal’s intestate was the administratrix, where he was not made a party to the proceedings; and he is not concluded from showing that his principal received nothing of the assets with which she is charged.
    Before Richardson, J., at Charleston, January Term, 1841.
    These were actions of debt on the administration bond of one of the defendants, Hannah Carlile, as administratrix of Jane Radford, deceased, the one being against her as principal, and the other against Paul Durant, as her security. The plaintiff produced, first, the administration bond— then the proceedings in a case in Equity, at the suit of Wm. B. Campbell, administrator, de bonis non, of John J. Radford, deceased, the real plaintiff in these suits against the defendant, as administratrix of Jane Radford, who was in her life time, administratrix of said John J. Radford. These proceedings consisted of a bill ordered pro confesso — an order of reference — a report of the commissioner, and a decree against the defendant for the sura of $205 38, with interest from 23d June, 183T. The plaintiffs then produced a ft. fa. issued in pursuance of said decree, and returned nulla bona. These proceedings speak for themselves. The defendant moved for nonsuits, on the ground that no citation had been issued against the defendant, Hannah Carlile, calling on her to account before the Ordinary for the estate of Jane Radford, deceased, the intestate of the defendant, and no decree against her for any assets of the estate of Jane Radford, which had come to her hands to be administered. I thought such a proceeding essential before action brought on the administration bond, and that the decree in Equity, produced by the plaintiff, with the return of nulla bona, without a decree from the Ordinary, or the Court *of Equity, as to the assets of Jane Radford, deceased, did not constitute proper legal proof of a devastavit by the defendant Hannah Carlile, and granted the motion for a nonsuit. I received the annexed notice of appeal, which, with the proceedings in Equity, will sufficiently explain the case to the Court of Appeals.
    GROUNDS OF APPEAL.
    1. That the decree in Equity, produced in these cases obtained by the plaintiff against the defendant, Hannah Carlile, as administratrix, with the fi. fa. returned nulla bona, was evidence of a devastavit, to charge the administratrix and her surety, the other defendant.
    2. That there being a decree in Equity against the administratrix to pay, she having failed to account, it was not incumbent on the plaintiff to call the defendant, the administratrix, to account before the Ordinary, previous to an action on the administration bond.
    3. That the decision of his Honor was in other respects, against the law of the case arising on the facts proved.
   Curia, per

Butler, J.

We are of opinion that the nonsuit ordered by the Circuit Judge should be set aside. Hannah Carlile had been duly called on to account, by a Court of competent jurisdiction. She had it in her power to acccount for her administration as fully in the Court of Equity, as she would have had before the Ordinary. Her liability was established by a decree which she did not oppose. Whether she could have effectually resisted it or not, is not for this Court to inquire. It is only necessary to inquire whether there was such evidence of a devastavit, as prima facie, to subject her security, Durant, to liability on the bond. .By the decree it would appear that Hannah Carlile had assets for which she was liable to those having demands against her intestate, and by the return of nulla bona on the fi. fa. (issued on the decree) it would appear that she had wasted the assets that came into her hands, This has always been regarded, as sufficient evidence of a devastavit, to charge the security on the administration bond. The ground was taken in argument, and it was the principal one relied on, that the securities of Jane Radford were alone liable to the present plaintiff, as she ^received into her possession, and did not account in her lifetime, for the estate of John J. Radford. If Jane wasted that estate, and it could be made to appear that her administratrix, Hannah Carlile, received nothing of it, the securities of the former, and not the latter, would properly be responsible for the devastavit. But the bill against Hannah charges that she received the money and chattels which had been in the hands of Jane Radford, and thereby incurred a responsibility to answer for the debts and demands against her intestate. The demand of plaintiff is fairly asserted against the representative of Jane Radford, and as she has not denied it, she must abide the judgment against her.

The security, Durant, however, occupies a different position in this controversy. As he was not a party to the proceedings against his principal/he is not absolutely bound by them, but, under the decision of the Ordinary vs. Condy, he may now show that his principal received nothing of the assets of the estate of John J. Radford, but that hey were wasted by the administratrix, Jane. He is not concluded by the proceedings against Hannah Carlile, but may show, on another trial, that his principal, having reached nothing, should have been amenable for nothing. This is an issue which depends on evidence, to be decided by a Court and jury. The motion to set aside the nonsuit is granted.

Note:—The notes of argument, and the authorities cited by the counsel, that the Reporter had taken, have accidentally been mislaid, and cannot be found so as to appear with this case. Reporter.

Thompson, for the motion. Yeadon, contra.

The whole Court concurred. 
      
       Post 380. An.
      
     
      
       Supra 41, and notes.
     