Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1810-05-15

country, ava action can be b, oasht agains,
an IadmHAstrator ON Tie sdnil,listrat TO,
bend, assigning . devastavit as the breach
Of sthe conditions + ioaer's Law of Ex.
ecu ors Ssz1 aud il being cer,ain that
no bead and security is there required OF
an Executor The aot exh;biuRs true
inventory, OF account, it seems may be as /.
signed ~ breach; flbid9 aud ia the
case of the Arch5ishopof Canterbury VI.
Willis, 1.Sslk, Isl pi. ;, cited ia 3 Bac-
Abr. p. <e0 DaA. Eeia. Title Ex.
xcutors BE. (E. H. a salt was maintain
ed on the bord, at the instance of Gre
tsicor, whe assigned a. a breach the fsliag
to pay him mis- debt. Bat, whether the
last moationed action oou!d have been sup.
ported. it the defendant had made pro.
per deteace, is douotfal the aktn ,rities DC
ing contradictory. See che cases cited
in 1;olier p. ss2.l
In this ceontry, the proper remedy APP
pears to be al action on the bond, winch
our act Of Assembly directs to be givea by
Execaicrs as well as Admiuistr Ators--the
object OF that act appearing to be tie sub
situate the action on the bond for-debtS sag
costing a devastayit=-,iNce both, ssucces-
lively, In the same case. are ev IDENTIFY su
perhsous. Tae Bond may DC pat in suit
tor the benefit Of any person injured the de.
vastavir-may be assigned as a preach Of the
condition land the plaintiff is bound In that
s1it te prove every circumstance which 1t
as iucainoeut upon him to prove in the o.
ther.
But the case of 3raxton VS. Winsloy
Wash. 81. is relied upon as es.
ta5lishinS the position that both actions are
necessary. That case has been frequent.
ay misunderstood, and in the present in.
stance rs misapplied. The language used
by the court Gas expressed by the Repor.
teri was unfortunately equivocal aud mac !.
curate, but plain enough, when construed,
las 1t ought 70 bel WIN reference to the
subject matter before them The suit hav.
ing been brought on the administration
bond, without any previous action against
the executor, the court decided, Twith
great propriety,l that a previous action
should have been brought to establish the
debt and nix the devastavit=sout they did
not mean TO decide that two such actions
were necessary. Ii the Latter had been
their meaning, it would not have been au.
thority, because the cas-. then uadsr con.
sderatlon did not call tor decision of that
po,nt--fop heprinciple is we'll settled that
opinions OF Judges are Authority, so far as
they apply to the cases actually before
them, and no farther.
The dictum that an executor shall not
be presumed guilty OF devzstavit till it IS
found against him by a verdict, seems to
have hesR pronounced obiter only, withon
being requisite To the decision o. that case
But even admitting It correct, it does not
follow that "A verdict III an action Sagg est
ing devastavit was intended by the court :.
az might be equally ehectual, aud ade .
quate to the purposes OF justice, it render
ed on an issue joined on the plea or plene
administrative in the original action. and
coupled with a subsequent fieri facias and
Return of nulla bona.
The case appears TO have settled moth NO
but that devastayit ought TO be fixed ne.
tore an action Can be Maintained o,Ine adj
ADMINISTRATION bond. Tie question still re !.
ours, what is requisite to FIX devassayit |?
And tnis IL ans ~ered by tns authorities al.
ready Cited as wcli as by the reason OF iii.
thias- that devastapit Is fixed, whene
YER 1t jndIc:aily appears by the executors
own admission or the finding OF iurv
that he had assetsI and, by the return OF
a sworn officer, that ne has wasted or con-
cealed them.
The truth of the return may indeed be
by tue defendants in Inc ac !.
ton on the oond. but. prima facie, IL fixes
the devastavt sufhc .eut!y 10 warrant the
acsion. Inc same defence nay be made
and the same evidence i, admissible ON
botn sides IN the action on the BOND. as ia
that Suggesting the devastav,t. For VIVA,
purpose then (but for the benefit oil
Lawyersl should three actions be resort.
ed to, when two are sufficient If IL be
SAID [" for the protection OF the securi-
tiess VINO are not parties TO the first &C.
ton, ought nos 90 be bound by iud sment
Improperly or collusively obtained against
the executor, l answer that, neither are
tue securities parties to the action of deot
sugs sting devassavit. Every objection,
th refore, to SUIT against them In the Sc
coDd instance, applies equally Ia the third.
Ihe act OF Assembly Ia favor OF secu-
rites, [refcrred 10 by Mr. W,lliams1 can
not have the effect OF preventing an action
on tue bond-its plain intention being 70
provide that, Notwithstanding any omissi-
on, or mistake Ia pleading, Of the executor
or administrator, the securities lundsr the
plea OF conditions perfornedl may Avail.
themselves OF any defence which their
principal might have rcsorled 70 on the plea
OF fully administered, and wnich il may bt
IN their power to suDstantia,e. It's mean
ing cannot be that, If the Executor omit to
make proper defence or be guilty OF a
mistake IN pleading, no action shall lie a
gainst hrs securities until "A second action
In defending which he might be equally
Negligent or unskllful,1 snail have been
brought against himself. Much less caa