
    *Jarrell’s Adm’r v. Eddins et als.
    January Term, 1857.
    Richmond.
    Absent, Field, P. — (He sat in tbe case below.)
    Equity Jurisdiction — Injunction against Sale of Slave Belonging to Decedent’s Estate. — Equity bas no jurisdiction to enjoin the sale of a slave, belonging to the estate of a decedent, (though about to be made under a wrongful levy,) at the instance of creditors, or of the administrator acting in their behalf, and alleging that the assets are sufficient to pay the debts; for, in such case, they claim merely as incumbrancers, and the remedy is at law. upon the indemnifying bond, if one is given, or by suit for the recovery of the property.
    Same-Same —But, if the injunction be asked by the distributees, or by the administrator in their behalf, alleging that a sale of the property would not be necessary for the payment of debts, equity would have jurisdiction; for, in that case, they claim as owners of the property, and it may have a peculiar value, not to be fully compensated in damages, in any proceeding at law.
    Case Approved. — The case falls within the principle of Bowyer, &c. v. Creigh, &c., 3 Rand. 25.
    James W. M’Mullan, administrator de bonis non of Joel Jarrell, dec’d, filed his bill in Greene Circuit Court, in November, 1851, setting forth that Joel Jarrell had died intestate some years before, and that Mrs. Olivia Jarrell, his wife, qualified as his administratrix; that subsequently her powers were revoked and the plaintiff was appointed in her stead; that ParmeUa Ed-dins had obtained a judgment against the-administratrix, and had afterwards sued her and her sureties, on her official bond,, for a devastavit, and had recovered judgment against her de bonis propriis, and against her sureties, for the sum of three or four hundred dollars; that in September, 1851, a fieri facias went out upon this judgment, which she (at the instance of her sureties, *who had given an in-demifying bond to the sheriff,) had caused to be levied on a slave named Gabriel, belonging to the decedent; that there was an insufficiency of assets of the decedent’s estate to pay his debts, and that it would prevent the due and proper administration of the estate, to allow the slave to be sold under the said execution. The bill therefore prayed an injunction against the sale, and an order directing the slave to be delivered to him. Parmelia Eddius, Olivia Jarrell and her sureties, and the sheriff of Greene county, were made parties defendant. An injunction was granted.
    None of the defendants appeared, except Robert Pritchett, one of the sureties of Olivia Jarrell, who demurred to the bill, and then answered, admitting the facts set forth therein, but insisting that the court had no jurisdiction, and that the proper mode of trying the question involved in the case was by action on the indemnifying bond.
    At the hearing, the court dissolved the injunction, and M’Mullan appealed to this court.
    Garland, for appellant.
    No apearance for the appellee.
    
      
      See monographic note on “Injunctions” (subhead, “Against Executions”) appended to Claytor v. Anthony, 15 Gratt. 518.
    
   THOMPSON, J.

This is the case of a bill filed by the administrator de bonis non to injoin the sale of a slave, which came to his hands as unadministered assets of his intestate, under an execution of fi. fa. sued out by a creditor of the estate against the first representative and her securities, upon a judgment by which the first representative was convicted of a devastavit. The judgment and fi. fa. was de bonis propriis against her and her sureties, and was therefore not properly levied upon the unadministered assets in the hands of her successor.' It is not the case of the absolute owner of a slave asking to injoin a sale under a wrongful levy, in which peculiar value is presumed, from the nature of *the property, unless such presumption is precluded by the circumstances of the case, as it might have been had the distributees filed the bill, claiming as such, and alleging that a sale would noi be necessary for the payment of debts, or had the plaintiff, as administrator, have complained in their behalf and negatived the necessity of a sale for the payment of debts. This bill claims the slave, not for the benefit of the distributees, but for the creditors alone, alleging a deficiency of assets, and, consequently, the necessity of a sale for the payment of debts. It is, then, substantially the case of an in-cumbrancer seeking to injoin the sale of personal property pledged for the payment of debts, and which must be sold in any event, and therefore comes within the influence of the decision of Bowyer, &c. v. Creigh, &c., 3 Rand. 25, and subsequent cases affirming the same principle, which deny to a court of equity jurisdiction in such a case. The plaintiff’s remedy was in a court of law, upon the indemnifying bond, or in a suit to recover the property. Therefore, the injunction in this case was improvidently awarded, might have been dissolved on motion, without answer or demurrer, and was very properly dissolved upon the demurrer and answer which were filed. l : : ; ! : ; : ; ■ ;

As this case goes off upon the ground of jurisdiction, it is unnecessary to express any opinion upon questions that may by possibility hereafter arise between the creditor now enjoined on the one hand, and the creditors who are seeking to charge the ün-administered assets and the distributees on the other — 'that is to say, whether the creditor who has recovered his judgment upon a devastavit against the first representative and her sureties, has lost his recourse upon the unadministered assets, or whether that recourse is only suspended until he has prosecuted them to insolvencj'; and, in the event of the insolvency of the first representative and her sureties, whether or not he could claim to occupy the same rights and priorities to and upon the unad- : ministered assets as *if he had obtained no judgment in devastavit against the first administratrix and sureties, but had brought his suit against the first representative and revived by scire facias against the administrator de bonis non.

The other judges concurred.

Judgment affirmed with damages and costs.  