#### *Dickinson, Adm’r &c. v. M’Craw.

March, 1826.

Foreign Administrator — Right to Sue.* — An administration-granted in another State, does not give the-administrator appointed there, a right to sue jointly with an administrator appointed in Virginia.

Attachment Bond — Action on — What Necessary to. Justify. — In an action on an attachment bond, by which the obligor was bound to pay all costs and damages, which might accrue to the obligee, in consequence of suing out the attachment, it is not necessary that they should be previously assessed in some other action, to j ustify an action on the bond.

Executors — Attested Certificate of Probate — Evidence. ' — The certificate of probate or of administration granted by a Court of this State, and attested by the clerk, will enable the executor or administrator to act, and maybe given in evidence in any Court of this Commonwealth.

Attachment Bond — Action on — Declaration—Allegations — Sufficiency of. — In an action on an attachment bond, it is not sufficient to allege in the declaration, that the defendant "did not pay all such costs and damages as have accrued &c.” but it must be expressly averred, that costs and damages had been actually sustained.

Martin Dickinson, administrator with the will annexed of Catherine Thompson, deceased, brought an action of debt against Robert Hammock and James M’Craw, in the Superior Court of Haw for Grayson county. It does not appear that Hammock was ever served with process, and the suit was prosecuted against M’Craw alone.

The action was founded on an attachment bond, which had been executed by the two defendants jointly, by which they, undertook to pay to Catherine Thompson,, “all such costs and damages as may accrue for wrongfully suing out a certain attachment then and there obtained,” (viz: in the county of Surry in the State of North Carolina,) “by the said Robert Hammock against the said Catherine.” The breach stated in the declaration is, “that the said defendants did not pay the said Catherine in her life-time, or the plaintiff since her death, all such costs and damages as have accrued for wrongfully suing out said attachment, &c.” The plaintiff concludes with making profert of his letters of administration with the will annexed of the said Catherine, “whereby it fully appears, that he is the administrator, &c.”

The defendant M’Craw filed a general demurrer to the declaration. He also craved oyer of the letters of administration *with the will annexed, &c. which were only a certificate of the clerk of Grayson county, that Martin Dickinson had qualified as administrator &c. of Catherine Thompson, deceased, . and given bond and security, according to law.

The defendant filed a second plea, that, at the time of commencing this action, the *77plaintiff was not the sole administrator with the will annexed, of Catherine Thompson, deceased, but that one Elijah Harris, was also administrator, &c. by letters of administration granted to him, by the County Court of Surry in North Carolina; by virtue of which, the said Elijah became a joint administrator with the plaintiff, having full power to sue in the present action, together with the plaintiff; and that the latter ought not to sue alone.

The tnird plea alleges, that no damages had been legally assessed or ascertained by suit against the said Robert Hammock, so as to enable the defendant or the said Robert, to pay the same, according to the tenor and effect of the bond.

The fourth plea is nearly to the same effect as the second.

The fifth plea, after craving oyer of the letters of administration, objects that the certificate above mentioned, gives no authority to the plaintiff, to maintain this action.

The plaintiff demurred to the three last pleas; and the defendant joined in demurrer.

The Court gave judgment for the defendant on the demurrers; and the plaintiff appealed.

Wickham, for the appellant,

contended that the declaration was good, under the authority of Craghill v. Page, &c. 1 Hen. & Munf. 446. Lane v. Harrison, 6 Munf. 573.

The second plea is not before the Court, as the demurrers did not apply to it.

The third plea is bad, because, in a suit on a bond with a collateral condition, it is not necessary to ascertain the damages by a previous suit against the principal. *The fourth plea is clearly bad, because an administration in another county has no authority in this. Dickson v. Ramsay, 3 Cranch, 319. Fenwick v. Sears, 1 Cranch, 259. Hilliard v. Cox, 1 Salk. 37. Burnley v. Duke, 1 Rand. 108.

As to the fifth plea, the certificate of the clerk of letters of administration, having been granted, was sufficient under our Acts of Assembly. 12 Hen. Stat. at Barge, 148.

No Counsel for the appellee.

*

Foreign Administrators — Right to Sue and Be Sued. —In Crumlish v. Shenandoah Val. R. Co., 40 W. Va. 660, 22 S. E. Rep. 99, it is said: “A foreign personal representative cannot sue or "be sued outside the state granting- him authority. Hull v. Hull, 26 W. Va. 15; Vaughan v. Northup, 15 Pet. 1; Bart. Ch. Prac. 152; *Dickinson v. McCraw,*4 *Rand.*158; Story, Confl. Law, § 513; Dixon v. Ramsay, 3 Cranch 319; Fenwick v. Sears, 1 Cranch 259; 1 Lomax 121; 1 Rob. Prac. (new) 161; Andrews v. Avory, 14 Gratt. 229; 1 Lomax 142; Doolittle v. Lewis, 7 Johns. Ch. 45; Fugate v. Moore, 86 Va. 1045, 11 S. E. Rep. 1063. The fact may be pleaded in abatement or in bar. Noonan v. Bradley, 9 Wall. 394.”

See further, monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6. The principal case is also cited in Durkin v. Exchange Bank of Virginia, 2 Pat. & H. 300.

JUDGE CABELL

pronounced the opinion of the Court.*

The Court is of opinion, that the second plea is bad; for, the administration in North Carolina did not give the administrator appointed there, a right to sue jointly with the administrator appointed in Virginia.

The third plea is also bad; for, if anjr damages had been sustained, it was not necessary that they should be previously assessed in some other action, to justify an action on the bond.

The fourth plea is also bad. The administration in North Carolina gave no right whatever to sue in this State; much less did it destroy the right of the administrator appointed in Virginia, to sue here.

The fifth plea is not less free from objection. Since the Act of 1785, 12 Hen. Stat. at Earge, 148, the certificate of probate or of administration granted by a Court of this State, and attested by the clerk, will enable the executor or administrator to act, and may be produced or given in evidence in any Court within this Commonwealth, and be as effectual as any probate or letters of administration, made out in due form.

But the Court is of opinion, that the declaration also is defective. The action was upon an attachment bond, the ^condition of which was, that the defendant should pay all costs and damages that might accrue from wrongfully suing out the attachment. The declaration avers, that the defendant “did not pay all such costs and damages as have accrued, *&c.”*But, there is no averment that the attachment was wrongfully sued out, or that any costs and damages had been sustained. The mere allegation that the defendant had failed to pay the costs and damages that had accrued, is not a sufficient foundation for inferring that costs and damages had been actually sustained. A direct averment was essential.

Upon the principle, therefore, of going back to the first fault, judgment was rightly entered for the appellee, on all the demurrers, and is therefore affirmed.

*

 Absent, the Pkesidext, and Judge Care.