tiff's claim, and thereupon it appears he has wasted or concealed them, so that a writ of fieri facias could not be levied upon them. Cur. adv. vult. Monday, 26th March, 1810. The Judges delivered their opinions. Judge TUCKER. This was an action upon an administration bond against the administrators and their securities for a devastavit, in which it was contended to be necessary to review the decision of this court, in the case of Braxton v. Justices of Spottsylvania Court, 1 Wash. 31. MARCH, 1810. Gordon's Administrators V. Justices of Frederick. The declaration (which is alleged to be at the instance of Nathaniel Cartmill) is in the usual form of a declaration on a bond for the payment of money; the defendants (without demanding oyer of the condition of the bond) pleaded jointly conditions performed and plene administravit. If this plea be regarded as the plea of the administrators, it might have been objected to, and ought not to have been received; as the plea of the securities, it was either an absurdity, or implied in the former plea of conditions performed. The plaintiffs, however, without objecting or demurring(4) to the plea, replied that they ought not to be (a) See 3 East, 5. precluded from having their action aforesaid against the said defendants, (at the instance of the said Cartmill,) by any thing in their plea alleged; because they say, that the defendants, the administrators, did not cause to be made a true and perfect inventory of the goods, &c. of the deceased which came to their hands, and did not exhibit an account of the same to the Court of Frederick, when thereto required; and did not faithfully administer the said goods and chattels in this; that the administrators aforesaid did not pay the amount of a judgment obtained in the said Court by N. Cartmill aforesaid, plaintiff, against the said defendants, for the sum of 721. &c. in which suit the said administrators pleaded payment and plene adminis 1810. ministrators V. Justices of MARCH, travit; and because the said administrators have wasted the estate aforesaid; and this they are ready to verify, and Gordon's Ad- pray that the same may be inquired of by the country, and the defendants likewise. The Jury found for the plaintiff Frederick. the debt in the declaration mentioned, to be discharged by the payment of the amount of the judgment in the replication mentioned, "if the Court should be of opinion, that an action on the administration bond aforesaid, can be maintained without shewing in evidence in such action, a judgment in an action of devastavit against the said administrators, John Kingan," &c. "otherwise they find for the defendant." The County Court gave judgment for the defendant. The District Court reversed that judgment, with costs both in the District and County Court; but without adding such judgment as the County Court ought to have rendered. Mr. Munford, for the appellees, on the (a) 2 Hen. & authority of Mantz v. Hendley,(a) admitted, that this Munf. 318. omission was an error in the judgment of the District Court, which this Court might amend. The case of Bibb (b) 1 Wash. V. Gauthorne,(b) and what was said by Judge Pendleton,(c) in the case of Cabell v. Hardwicke, are additional authorities in favour of Mr. Munford's concession; and shew what kind of judgment the Courts ought to pronounce in suits upon executors' bonds, where the plaintiffs may be entitled to a judgment. 91. (c) 1 Call, 3.52. 31. But we are called upon by the counsel for the appellees to review the decision of the Special Court of Appeals in the case of Braxton, Executor of Claiborne, against Wins (d) 1 Wash low and others, Justices of Spottsylvania County,(d) which was an action of debt brought, as in the present case, upon an executor's bond, against the securities, to subject them to the payment of a bill of exchange. The suit was instituted upon the bond at the instance of the endorsor of the bill of exchange against the executor's securities, without having previously obtained a judgment against the executor upon the bill of exchange: here the two causes differ; the relator in the present case having, previously to 1810. ministrators V. Justices of the commencement of this suit, obtained a judgment (as is MARCH, suggested in the replication) against the administrators for the sum of 721. to be discharged by the payment of 367. Gordon's Adwith interest and costs. But, whether this judgment was against them personally, or for a debt of their intestate, or whether they were chargeable by that judgment de bonis propriis, or only de bonis testatoris, we are left in the dark by the replication. But this, perhaps, may be aided by the verdict. I shall therefore pass it over for the present. To return then to the case of Braxton v. Winslow. After ayer of the bond and condition, the defendants (securities) pleaded conditions performed: the replication traverses the plea, and charges a breach in the non-payment of the bill of exchange, which was protested, of which the executor had notice, but had not paid it; having paid debts of inferior dignity after such notice, and wasted the assets. The defendants rejoined, and by protestation say the executor had not wasted the assets. The Jury found that there was 1,114. due to the relator upon the bill of exchange, and that the executor had wasted the assets; and judgment was entered for the penalty of the bond, but to be discharged by the payment of 1,114/. as to this breach. From this judgment the defendants appealed. Two questions were submitted to the Court. The first it is unnecessary to notice; the second was, "Whether the action could be maintained before a judgment first had by the plaintiff against the representatives of the debtor, and an execution and return of nulla bona." The Court, in the discussion of this question, is reported to have said, "The true question is, has the relator brought himself within the act; or, in other words, does it appear from this record, that he is a party injured within the words and meaning of the act. A man who claims as a creditor, and means to take the benefit of this act, [1748, c. 3.] must shew himself to be a creditor; that the testator left assets; that they came to the hands of the executor; that there was a sufficiency to discharge his demand, or so VOL. I. 1810. MARCH, much thereof, after paying debts of higher dignity; and that the executor has wasted the assets. Without this conGordon's Ad- currence there is no injury done him." The report pro ministrators V. Justices of ceeds thus: "An attempt was made at the bar to shew, that the paying of debts of an inferior dignity, first, was of itself a devastavit; and that a devastavit for ever so trifling a sum, renders the executor liable for the whole demand, although assets to the twentieth part never came to his hands. But neither reason nor authority warrant this doctrine; for, surely, if there be a sufficiency of assets, it is of no consequence in what order they are paid. But the person who means to make use of this act must shew himself to be a creditor in the usual course of law. It is not enough to produce a mere document of a debt; he must first institute a suit against the executor or administrator, because it is, in the first instance, a dispute between creditor and debtor, whether or no a debt actually exists; a dispute, which the securities to such a bond (who are strangers to the contract) are by no means competent to manage. It is a principle of universal law, that both parties shall be heard. Let us put this case: suppose A. binds himself in a bond to B. to pay him whatever sum C. owes him, (B.); now, before a forfeiture is incurred by A., must not B. first prove the sum that C. actually owes him? Mr. Wailer, (the relator,) therefore, ought to have shewn, by an action against the executor, that he was a creditor." Thus far the relator in the present case (if the breach be sufficiently assigned in the replication) may be said to have proceeded. He has alleged that he has obtained a judgment against the administrators; and I will suppose it to be for a debt due from their intestate. The Court proceeds thus. "He (the relator) ought to have shewn by his action against Moore, the executor, that he had committed a devastavit; a suggestion of a devastavit may be likened to a criminal prosecution, and an executor shall not be presumed guilty of a devastavit till it is found against him by a verdict." Here then we are brought to the inquiry, by what course of proceeding this fact may be found against an executor by a verdict. Anciently, if the sheriff returned nulla bona, and also a devastavit to a fieri facias de bonis testatoris sued out on a judgment obtained against an executor, it was sometimes the practice to sue out a capias ad satisfaciendum against the executor; or a fieri facias de bonis propriis. But the better and more frequent method was, to sue out a scire facias, and obtain an award of execution before issuing the fieri facias de bonis propriis. But the most usual practice upon the Sheriff's return of nulla bona to a fieri facias de bonis testatoris, was to sue out a special writ of fieri facias de bonis testatoris, with a clause therein, et si tibi constare poterit, that the executor had wasted the goods, then to levy de bonis propriis. And this we are told continued to be the practice of the King's Bench until the time of Charles I.; but in the Common Pleas a practice had prevailed in early times upon a suggestion in the special writ of fieri facias of a devastavit by the executor, to direct the Sheriff to inquire by a Jury whether the executor had wasted the goods, and if the Jury found he had, then a scire facius was sued out against him; and, unless he made a good defence thereto, execution was awarded de bonis propriis, which practice was, about the time of Charles I. recommended by the Court of King's Bench to' be adopted in that Court likewise. It afterwards became the practice of both courts, for the sake of expedition, to incorporate the fieri facias inquiry, and scire facias into one writ, thence called a scire fieri inquiry. This writ recites the fieri facias de bonis testatoris sued out on the judgment against the executor, the return of nulla bona by the Sheriff, and then suggesting that the executor had sold and converted the goods of the testator to the value of the debt and damages recovered, commands the sheriff to levy the said debt and damages of the goods of the testator, in the hands of the executor, if they could be levied thereof; but, if it should appear to him, by the inquisition of a MARCH, 1810. Gordon's Administrators V. Justices of Frederick. |