
    
      Clarkson, &c. vs. Commonwealth, to use of Smith.
    
    Devastavit.
    Error to the Pendleton Circuit; H, O. Brown, Judge.
    
      Administration. Plene administravit. Practice. Evidence. Statute.
    
    June 22.
    Action for a devastavit, “Ne¿eymain gainst adm’r. and securities without first hxins evas~ 
      
      tavit on principal. General plea., if fully administered good, upon issue def’t. must shew legal administration.
   Judge Underwood

delivered the opinion of the Court.

This is an action upon an administrator’s bond, against him and his sureties, for a devas-tavit. The case of Hobbs and Churchill vs. Middleton, I. J. J. Mar. Rep. 176, shows that the action may be maintained, without previously establishing a devas-tavit upon the administrator, in a separate suit against him. There is nothing, therefore, in the objection, that the action cannot he sustained. The defendants plead, that the administrator had fully administered. To this plea, the plaintiff demurred, and the court gave judgment against the plea. This judgment is erroneous. The legal import of the plea is, that the administrator had disposed of all the assets which came to his hands, according to law, and that nothing was left with which to pay the demand of the relator. If,this was true, (and the demurrer admitted it) judgment should have been rendered for the defendants.

Security not concluded as to assets, by revival of judgment a-gninst adm’r.

JJepew, for plaintiffs.

The sureties had an unquestionable right to rely on this defence. There is no ground for a remote inference, that they were precluded by any proceeding against them, directly. The revival of the judgment by scire Jadas, against their principal, the administra^ tor, if it were admitted, that such revival concluded him, as to assets, yet it could not effect the rights of his sureties. According to the statute and the facts, exhibited in this record, neither principal or surety, was prevented from relying on the defence, which the plea would have let in,

For this cause, the judgment of the circuit court is reversed, and the cause remanded, for a new trial, with directions to permit the plaintiff to withdraw the demurrer, and reply to the plea, if leave should be asked todoso;andif not,then to render judgment, in bar of the action, for the defendants. If the demurrer is withdrawn, and issue taken on the plea, and a new trial had, it is proper to remark, that to support the issue, on the plea of plene aclministravit, the defendants must show that the assets were applied in the"payment of debts, according to the order required] by law. An illegal administration is equal to no administration of the assets, in respect to those affected by it.

The plaintiffs in error, must recover their costs of the ref.tor.  