#### Markham’s Ex’or. *vs*Allen.

Error to the Bourbon Circuit.

Debt.

*Case*99.

*Devastavit.*Executors. *Judgments.*

Case stated and facts agreed.

*June 16.*

S to to "Breck

■•delivered the opinion of the Court

Tins was an action of debt brought by Allen against the plaintiff in error, upon a note of his testator for one ¡hundred dollars, bearing date the 23d June, 1837, and payable one day after date. And issue having been made up upon a plea of *plene administravit*by the executor, and the law and facts having been submitted to the Court, judgment ‘was rendered for the plaintiff for $75, with Interest from the 24th June, 1837, until paid; and also for $25, with interest from the same periosj, She last sum to be paid out of assets in the hands of the *418executor, or which might thereafter come to his hands to be administered, and also for his costs. To reverse that judgment the defendant has brought the case to this ■Court.

íto arafeome a •Jeágsaeaií *de ¡bonis propriis*agai&staa ejecutor, Üasjs rausí have been a provisos ¡¡ságraaEí *tñe'bonis Ceslats*rá; and a eetam *isi cuntía éema*<2 *M. X Mash.*»S

The following statement of facts was' admitted upon 'the trial, and which was all the evidencet That in slaves •and personalty and other legal assets, the executor had received $9,000, and had paid for debts a sum, which with the debt In controversy, amounted to $12,000, and that the debts paid had been paid in full. That as ex-"©eutor for the benefit of himself aiud other devisees, ho had received a part of the price of a tract of land, which with the legal assets, were more than sufficient to pay all the debts. That his testator had been dead about two years, and that he had had a© settlement of his accounts as executor with commissioners.

Upon this state of the pleadings and facts, it is manifest that the judgment cannot be sustained.

As to the $75 and the costs, the judgment Is In effect to be levied *de-homs prepriis^*and to that -extent convicts the executor of a *devastavit.*'To entitle the plaintiff 'to such a judgment, hs must have obtained a previous judgment against the executor to be levied-ds *hmis*fey-feferis, and upon which execution had been returned *ndlla ¡bwm,*as settled In *Carall and others*vs *Connet,*(2 J. J. *Marshall,*208, *and other eases.)*Without such judgment and re tarn, -no suit for a *de<omtusoi&*could be brought, unless authorized by the -act of 1839, regula* Hag the administration and settlement of estates? and melíher the letter nor spirit of that act seems to oontem-.plate any proceeding under it except In a Court of equity. *It*gives a© new remedy, -nor does it change •fee ¡mode <©£ proceeding at law.

It Is true In an action for s *devastavit^*it fixes a new ■rule as to the extent of the liability of fee executor or •administrator, where the assets are Insufficient to pay ■all fee debts, but does not change the mode of proceed'Isg.

•The juágraeat *m*'this case should have been for the whole defeiia&d costs, to fee levied of assets in fee hands *419of the executor, or which might thereafter come to his hands to be administered.

*Robinson Sf Johnson and Smith*for plaintiff; *Hawes*for defendant.

Wherefore, the judgment is reversed and the cause remanded, that a new trial be granted, and for further proceedings consistent with this opinion.