#### Anderson, Administrator of Cody, v. Price.

Argued Wednesday, March 16lh, 1814.

i. Judgment — Debt on — Declaration.*—In debt on a judgment, for the penalty of a bond, “to be discharged by a smaller sum with Interest.” the declaration ought not to demand the smaller sum with interest till paid, but, “the penalty to be discharged thereby.” And error In this respect Is fatal, even after verdict.

This was an action o£ debt in behalf of the appellee against the appellant, suggesting a devastavit. The declaration demanded “the sum of 1391. 2s. with interest from the 23d day of February, 1803, till paid, and 5 dols. 21 cents costs, also the sum of 1161. 12s. lid. with interest from the first day of July, 1803, till paid, and 5 dols. 21 cents ; which several sums of money the defendant owes to him the plaintiff, and from him detains ; for that, on the day of May, 1809, in the county aforesaid, the plaintiff, by the judgment of the said County Court of Cumberland, recovered against the defendant, as the administrator of James Cody, the aforesaid sums of money, to wit, the sum of 2781. 4s. to be discharged by the payment of 1391. 2s. first above mentioned with interest thereon from the 23d day of February, 1803, till paid, for debt, and 5 dols. 21 cents costs ; also, by the judgment of the said County Court of Cumberland, on the same day and year aforesaid, the plaintiff in like manner recovered against the defendant, as administrator aforesaid, one other sum of 1161. 12s. lid. with interest thereon, from the 1st day of July, 1803, till paid, for debt, and 5 dollars 21 cents costs, to be levied, as to the debts aforesaid, of the goods and chattels of the said James Cody, deceased ; and the plaintiff in fact saith, that the defendant the several sums of money aforesaid to him did not pay, although often thereto requested ; and although the said James Cody, at the time of his death, left goods, chattels, and effects, sufficient to pay and satisfy the several sums of money aforesaid, which goods, *chattels and effects of the estate of the said James Cody, deceased, the defendant having received into his hands as administrator aforesaid, hath misapplied and wasted, so that thereof the plaintiff his debt aforesaid cannot make, by reason of which promises, right of action hath accrued to the plaintiff to demand and have of the defendant, the aforesaid several sums of money, that is to say, the sum of 1391. 2s. with interest,” &c. &c. ; concluding in the usual form.

The defendant pleaded not guilty, no waste, and fully administered ; on which pleas issues were joined. On the trial of these issues, two bills of exceptions were filed, the objects of which need not be mentioned here, as the Court of Appeals gave no opinion upon them. The jury found a verdict, “that the defendant had not fully administered the estate of James Cody, deceased, but that goods, chattels, and effects came to his hands to be administered, of which 711. 15s. Id. remained in his hands unadministered. They therefore found for the plaintiff the debt in the declaration mentioned, to be levied, so far as the 711. 15s. Id. aforesaid, of the proper goods and chattels of the defendant, and, as to the residue, to be levied of the estate of James Cody, deceased, in the hands of the defendant, when assets shall further come into the defendant’s hands to be administered.” Judgment was accordingly entered, from which the defendant appealed.

The attorney general ror the appellant (among other points) relied upon this ; that the declaration ought to have been for the penalty, and not for the sum by which it was to be discharged. In Newell v. Wood, 1 Munf. 555, the penalty of the bond was considered as the debt; and the rule is the same whether the suit be on a bond, or on a judgment, “for the penalty of the bond, to be discharged by payment of the sum” in the condition mentioned.

Wirt, contra,

insisted that this objection was a mere matter of form, and could not avail after verdict. The suit is brought for the sum really due ; and he conceived that, in *debt on a judgment, this is the proper method of declaring. The case of Newell v. Wood does not apply. It only shews that the amount of the penalty is the measure of the jurisdiction of this court. In that case, the action was not on a judgment, but on a sheriff’s official bond ; and the only judgment that could ever be entered upon that bond was for the penalty ; subsequent proceedings in favour of any other persons being by scire facias, (a)

Friday, December 9th, 1814,

*

See monographic *note*on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.

The principal case is cited in Kemp v. Mundell, 9 Leigh 16.

(a)

 Bibb v. Cauthorne, 1 Wash. 92.

JUDGE ROANE

delivered the following opinion of the court.

In this action, (which is an action of debt against an administrator, suggesting a devastavit,) one of the sums demanded is 1391. 2s. with interest from the 23d of February, 1803, till paid, with the costs of a former suit. It also appears from the declaration, that this sum was that by which the sum recovered in a former action, viz. 2781. 4s., ought to have been discharged. On the authority of the case of Ragsdale v. Batte, in this court, this penal sum was the one for which the appellee ought to have declared, and which in no event could be exceeded. The declaration being, therefore, for the sum conditioned to be paid in the judgment aforesaid, with interest thereon till paid, is not only erroneous in departing from the foregoing standard, but, in event, might have subjected the appellant to the payment of a greater sum than, by the appellee’s own shewing, in his declaration, he is entitled to recover. On the ground of this defect in the declaration, the court is of opinion, that the judgment should be reversed, and rendered for the appellant.