
    Irvine’s Administrator vs. Williams &c.
    [Mv. John Trimble for plaintiff: Mr. Hárison for defendants.]
    From the Circuit Court for Bourbon County.
    Debt.
    
      November 1.
    A declaration on an administration bond, sets ont a judgment for the debt, against the adm'rs, with a return of nulla .bona, and also, a judg't against them personally, for a devastavit; but does not aver the non-payment of the 'latter: the want of that averment is a fatal defect.
    Plea that the securities were released by the county court ¡replication that after the judg’t for the debt, but before the sureties were released, theadm'r wasted the estate: this rep’n is good on dem’r. -But, as the dem’r goes back to the defect in the dec'n, it must be sustained, tho’ the rep’n is good.
   Judge Marshall

delivered the Opinion of the Court.

The declaration being upon the administration bond, against the principals and sureties, therein, sets forth a judgment against the administrators, in their fiducial character, with an execution thereon, returned “nulla bonaand, also, a judgment against the administrators, personally, for the same debt, obtained on the ground of an alleged devastavit; but it fails to aver the nonpayment of the latter judgment. And, in this respect, it is, in our opinion, fatally defective.

Although, therefore, we are inclined to the opinion, that the release of the'sureties by the Bourbon County Court, as relied on in the plea, is sufficiently avoided by the averment in the replication,; that, after the first judgment-, and before the release pleaded, the administrators had wasted goods and chattels of the decedent to the value of the judgment, yet, as the demurrer to the replication reached the defect in the declaration, and as that defect was neither waived by the plea, nor supplied by any averment in the replication, it was not erroneous to sustain the demurrer, and render judgment thereon in bar of the aetion.

Wherefore, "the judgment is affirmed.  