
    Jones and others v. Perkins and another.
    Where sureties bring an action in the nature of a bill quia timet, they must show that they are liable, not merely that they once were and may now be liabie; otherwise the petition will be demurrable.
    Sureties for the faithful performance of the duties of an administrator of a vacant succession under the laws in force before the introduction of the common law were not responsible for breaches committed after the expiration of the year allowed for administering the estate. (Note 67.)
    Appeal from San Augustine. The petition In this case alleged that on the 28th day of July, A. D. 1835, Donald McDonald and James Perkins entered into a bond as security for George W. Jones for his faithful administration of tlie estate of William Webb, to which the said Jones had been appointed administrator by the primary judge of the municipality of San Augustine; that at the Fall Term of the District Court of the county of San' Augustine, A. D. 1837, one Cartwright recovered a judgment against the said Jones as administrator of Webb; and that at the Fall Term of the said court, A. D. 1838, the said Cartwright recovered another judgment against the said administrator for three hundred and fifty-two dollars, besides interest and costs; that tiie administrator, after having received certain slaves named in the petition and other property to a large amount, had fraudulently and with a-view to defeat the creditors of the said estate entered into an arrangement with one Lewis, who fraudulently set up a claim to certain slaves by bill of sale from one Johnson, for the purpose of defrauding Johnson’s creditors, he (Johnson) being greatly embarrassed and indebted at the time, “and that the said Jones, administrator as aforesaid, for the purpose of changing the ownership of said slaves belonging to the estate of said Webb, made a swap or exchange with said Lewis, by an-d with the consent of said Johnson, by which swap or exchange the said Jones delivered to the said Johnson the said slaves belonging to the estate of his intestate, Webb, and received in lieu thereof seven other negroes, but instead of taking a bill of sale for said negroes from said Lewis to-himself, lie took it either to his wife or to his children; ” that the said Lewis, for the purpose of carrying out the fraud, instead of conveying the said slaves, the property of the estate of Webb, to Johnson, had, for the avowed considertion of love and affection and in consideration of five dollars, transferred the said slaves to the said Johnson, who was the brother-in-law of the said Lewis, the wife of the said Johnson and the mother of the children being the sister of Lewis; that it was all a fraudulent transaction between Jones, Lewis- and Johnson; that Lewis departed this life in April or May, 1842; “that the ■slaves belonging to the estate of Webb, so fraudulently conveyed, are now in tlie possession of the said Johnson and controlled by him as liis own,” although he was fully aware that they belonged to the estate of Webb; that Johnson is notoriously insolvent, and that Jones has applied for the benefit of the insolvent law; that one Garrett, who is administrator of Cartwright, threatens to ■commence proceedings to enforce the payment of the judgment as aforesaid, and that petitioners much fear that, should he do so, they will have to pay the whole amoun t of the same; that they fear that Jones and Johnson will remove the negroes beyond the jurisdiction of this court, and leave the petitioners wholly remediless without the aid of the court. A sequestration was prayed, and that the said slaves might be seized and subjected to the satisfaction of the judgments aforesaid, &c., &e., and that Jones, Johnson, and Cartwright might be made parties.
    Note G7. — Murphy v. Menard, 14 T., G2.
    The petition was filed 9th September. A. D. 1843, and Jones appeared and ■filed a demurrer to the petition, and answered, denying that Webb died intestate, but that by his nuncupative will had constituted respondent his universal heir, and that as such he had obtained administration on the estate. He denied all fraud in the transaction between himself and Lewis and Johnson; that it was a fair transaction between all of them. The answer admitted the judgments set out in the petition; set up payment of the first and an equitable defense against the last-mentioned judgment.
    There was judgment for the plaintiffs.
    J. M. Ardrey, for appellants.
    
      Henderson and Jones, for appellees.
   Lipscomb, J.

The sole ground of the plaintiffs’ right of action rests on their liability as the securities of Jones in the administration bond, and their reasonable apprehension that that liability will be enforced, and that id will fall on them to satisfy the judgment of Cartwright against their principal, the administrator. If they are not”liable they have no canse of action, and this liability will be tested by the application of the law to the facts disclosed in their xx'tition.

This question was fully discussed and decided by this court in the case of Howth v. Flores, at the December Term of this court, A. D. 1849, (5 Tex. R., 329.) ami need not again be reviewed, a reference to which will show that the liability of these securities had ceased more than a year before the Cartwright judgments were obtained, and six years had elapsed after they were obtained before this suit was commenced. If those judgments arc still valid and subsisting after so great a lapse of time, -without efforts to satisfy them, under the facts 'presented the legal representative of Cartwright might well seek satisfaction out of the sale of the slaves that belonged to the estate of Webb, in defalcation of other properly out of which satisfaction could be obtained. For if it bo true (hat Jones be the universal legatee of Webb, the property was his, bur-thened with the payment of these debts. It is, however, a matter in which, from the fads stated in the petition, the present plaintiffs have no concern; and their petilion ought to have been adjudged bad on the general demurrer, ■as well as it might be in arrest of judgment, or on error assigned apparent on the record. Because, therefore, the demurrer was overruled and judgment was rendered erroneously in favor of the plaintiffs in the suit, the same, must be •reversed and (lie cause dismissed.

Reversed and dismissed.  