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

change which was protested, of which
the executor had notice, but had no.
paid III; having paid debts of inferio,
dignity after such notice, and wasted
the assets. The defendants rejoioed
and by protestation say the executo,
had not wasted the assets. The Jury
found that there was { 11f4, due to
the relator, upon the bill of exchange
and that the executor had wasted the
assets. And judgment was entered
for the penalty of the bond, but to be
discharged by the payment of { l1I4
as to this breach from this Judgment
the defendants appealed.
Two questions were submitted 20
the court; the frat it is unnecessary
to notice. The second was,
Whether the action could be main.
tanned before a Judgment frst had by
s the plaintiff against the represents
tives of the debtor and an execution
and return of nulla bona.'
The court in the discussion of this
question, is reported to have said 4;
: The true question is, has the relator
brought himself within the act! or
In other words does it appear from
this record, that he is party injured
within the words and meaning of the
act. A man who claims as a credi-
tor and means to take the benefit of
this act [t74s, c. 81 must shew him
self to ee a creditor; that the testa-
tor LETT assets that they came to the
: hands of the executor; that there
was suffieiency to dicharge his de-
mand, or so much thereof after paw
ing debts ofhighcr dignity; aud that
: has wasted the assets. Without this
the ex'or. concurrence there is no in
jury done him. The report proceeds
thus:
An attempt was made at the bar To
$ shew shat the paying of debts of an
: inferior dignity, first, was of itself a
8 deyastavit: and that devastavit for
8 ever so trifling sum, renders the
6 executor liable for the whole demand
: although assets TO the twentieth parl
never came to his hands. BUT neither
reason nor authority warrant this doc
$ trine; for, surely, if there be stuff.
: cieRcy OF assets, it is Of no conse.
: quence IN what order thgy.-are paid.
s but the person who means to make
use OF this act must shew himself 10
s be a creditor in the usual course OF
law. 1t is not enough to produce a
mere document of debt; he must
: first institute suit against the exc
tutor or administrator because it is.
8 IN the first instance, a dispute be.
tween creditor and debtor whe her or
$ no debt actually exists, a dispute,
which the securities to such bond
i lwho are strangers to the contract
/. are by no means competent to man.
age. 1t is principle of universal
: law that both parties shall be heard.
$ Let Us put this case: suppose A.
{ binds himself in bond TO b. to paw
him whatever sum G. owes him Isl
now before forfeiture is incurred
by A, must not B first prove the sum
{ that Z actually owes him Mr. Wal.
6 Ter Gthe relator] therefore ought to
: have shewn by an action against the
execu or that he was creditor.n
Thus far the relator in the presen,
case [if the breach be sufficiently as.
signed in the rcplication1 may be said
to have proceeded. He has aledgcd
that he has obtained judgment against
the administrators and will suppose
it to be for debt due from their in.
'testa,e.
The court proceeds thus. He 1.-THE
relatorl ought to have shewn by his
{ action against Moore the executor
that he had committed devastavit
suggestion ola devastavit may be
i likened to criminal prosecution
and an executor shall not be presu.
med guilty Of a devastavit, till it i:
found against him by verdict
Here then we are brought to the in.
quiry, by what course Of proceeding
,his fact may be found against an exc.
cutor by verdict.
Anciently, if the sheriff return.
ed nulIa bona, aud also devastavit &c
a heri facias de bonis testatoris sued
out on a judgment obtain'd against al
executor, it was sometimes the prac
ice to sue oct capias ad satisfaction
| It,rs, orafpct tb.. avsr,.tor. -. =. G.. A.