#### Turner and Others, Surviving Justices of Fauquier, v. Chinn’s Ex’ors and Others.

Tuesday, October 14, 1806,

Administrators — Action on Official Bond* — Proof of Devastavit. — A judgment against an executor or administrator as such. with, a return oil the execution “that he has removed out of the state,’* is not sufficient, evidence of a devastavit, to ground an action on the bond given for the performance of liis duty.

Same Same — Establishing Devastavit.* — Qu? Ts it necessary, after a judgment against an executor or administrator as such and a return of “no eifects” on the execution issued thereupon, to bring a second suit to establish a devastavit, before an action can be maintained on the executo-rial bond.(1)

*

See monographic *note*on “Executors and Administrators’* appended to Rosser v. Depriest, 5 Gratt. 6; monographic *note*on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.

(1)

 N. B. It being-understood that a case is now depending- which will bring the single point last mentioned before the Court; it was agreed by the Judges that it should be open to discussion, notwithstanding the cases heretofore decided by this Court; none of which, it is believed, have directly settled that question. — Note in Original Edition.

This was a suit originally brought in the District Court of Dumfries, by the appellants against the appellees, on an executor’s bond. The declaration was on the penalty, without noticing the condition: the defendants, after taking oyer, pleaded ‘‘conditions performed to which the plaintiffs replied, and assigned for breach of the condition, that the surviving partners of Dunlop and Son and Co. had recovered a judgment in a prior suit, against Rawleigh Chinn, executor of Charles Chinn, deceased, for a sum therein mentioned, which was still unpaid; a copy of the proceedings in that suit, which shewed that it abated against the other executors, also a copy of the judgment against R. Chinn, with the execution and sheriff’s return thereon, that he had “removed to Kentucky,” were referred to as part of the replication; which further alleged that R. Chinn had more goods and chattels of the decedent tiian were sufficient to satisfy the said judgment, and that he had wasted them, &c. whereby the surviving partners of Dunlop and Son and Co. had lost the effect of their judgment.

To this replication the defendants demurred; and assigned as causes — 1st. That it was not charged, that all the executors of Charles Chinn, had wasted, &c. — 2d. That it did not appear that a suit was ever brought against Rawleigh Chinn to subject him to the payment of the debt, in consequence of the devastavit alleged against him — and 3d. That the replication was in other respects erroneous.

The District Court, on argument, sustained the demurrer; from which judgment

an appeal was taken to this Court. *The Attorney-General, for the appellants.

Botts, for the appellees.

It is deemed unnecessary to insert the points made b}r counsel in this cause, as the Court, (consisting of Dyons, Carrington and Tucker, Judges,) on Thursday the 16th of October, affirmed the judgment of the District Court, solely on the ground, that the judgment against the executor, as such, with the sheriff’s return upon the execution, that he had “removed to Kentucky,” did not warrant an action on the executor’s bond. They were therefore of opinion that the demurrer had been rightly sustained.