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


the sscuri les in that caseSco lid ONLY have
teea made -chargcable 70 abs amount oil
the q .sets 1oHnd by the VERDICT
But my 'pr;noiPh 1Sie& in citing fhis
case was to shew that in England they
tbi6k 1t Necessary to proceed separately
Against rhe administrators and shew the a.
mosnt of the asset. which have GENE 10
his annds before they sue the sareties !;
instead Of bringing joint action against
tbem ssk before they have established ei-
ther the smouRt Of the assets, or the La
billy Of thc administrators. as the plaintiffs
have done in eiis suits and further 10
slew that that part Of the decree which
declares that the xetdia against the adj
|miaistrstrix should stand as 3 security,
only Tor so much IS the inventory might
Ian short Of the pay ment oftfie creditor's
debt, is according to the spirit OF the deci.-
sion IN Braxton Sfot,sylvania Justices;
that Ire credilor must Psrsae the estate
Of the deceased, uatl il as exhausted. be :,
fore soy suit can be brought against
secari,y apoa the admiais,sstton bond.
In the case Of White, VIII tie, s. CO. v
Baaisters execa'ovsf Wash 1ss ] Judge
Pendtcton in delivering the cpinioa of the
court said A-credi.or may az law either
6 sue out execution upon a Judgment oh
Is talued ag&ins. the executors, and levy IL,
on the>vlsi6le property Of the teslator. ii
any /: or, ifnone be found. 2dIy he may
proceed against the executors, as for u
devastavit, on account of a miszppIica.
'tion of assets OF Sdly, creditor may
not know the state OF the assets, the A.
: mount. aor the claims against the estate {:
{ he may therefore file his bill in equity
lie have a discovery of those matters !;
: and, on that discovery being made. may
either proceed al law" That is to say,
upon the executors bond. as understand
mimi "or that court may retain the cause"
as was done ia this court in the case OF
faliaferro & Gains Thornton and Wife
before mentionedl /" and determine the
seems to me 10 be perfectly ia Conformity
TO the principles which were supposed to
have been settled inthe case OF Brax,on
v the Spottsylvania justices.
Upon these grounds am of opinion that
the opinion of the County court IN favor of
the defendant upon the point reserved, was
correct and therefore that the Judgment
Iof the DISTRICT court, reversing that indg.
lment, ought to be reversed, and that Of
the County court affirmed.
Williams, for the appellants. relied on
the case of Braxton v. Winslow, II Wash
81 recognised in Call v. Ruffin RI Call
SS3l as having settled the point, that an
action cannot be sustained on an admins.
tration bond without previous suit, fixing
devastavlt, against the executor or adj
rninistrator. BY mote to Turnerv Chinn
Il Hen. & Mun. Sal it appears that the
judges consented TO reconsider the case
OF Braxton v. Winslow bat no opinion
was expressed on the point. the question
is therefore not influenced by what fell
from the bench in the last mentioned case.
But an additional. reason may be given
why previous suit is nscessary against the
executor or administrator, TO establish a
devastavit, before an action is brought a..
gainst the securities. The law declares
that nc security for an executor OF admin.
str ator shall be chargeable beyond the
assets of the testator or intestate on ac-
count of any omission or mistake in plead
ing. of the executor or administrators II Rev
Code, pa. los, s. 33j. ftistherefore rea
sonaable that the amount of assets wasted
by the executor or administr ator. should
be ascertained by the verdict Of 4 jury,
before the securities are called on.
Munford for the Appellces observed an
omission in the judgment of the District
Court. They had failed to enter such judg.
ment as the county court ought to have
rendered :--but his court might supply il.
as was done in Mantz vs. HcndIey "a III.
and M $751; Thejudgment reversing th at
OF the county court, being correct, should
SO far be affirmed and the Appellees.
IN that event, should recover their costs
being the party substantially prevailing
In TINS case the Verdict was gener al in
favor Of the PLAINTIFF, as to every thing in
controversy between the parties, except
the point submitted to the court, which was
whether an action on the administration
bond could be maintained without shew :.
s ing ia evidence in such action a iudg.
ueBt ia AN action of devastavit against
the administrators On such a verdict.
every fact or circumstance which (inde.
pendeatly of the implied finding that no
judgment had been obtained in AN action of
devastavit) could justify a decision in ia.
YOUR of the plaintiff, must be understood
70 have been proved 20 the jury. Pori VS.
Gardner, Il "A. & M. 72.) We have there
fore right to presume that, in the origi.,
nal suit brought 20 establish the debt. a
verdict was found against The d, PENDANT on
an issue joined on the plea of plene admins.
travit, by which verdict n WAS a certainea