Clarke v. Webb

2 Va. 8

• Court: Supreme Court of Virginia
• Decided: September 8, 1807
• Status: Published

Opinion

Per Curiam.

The rule of law as laid down by the Supreme Court in the case of Braxton v. Winslow, 1 Wash. 31. is well understood and admitted, that, at law, the security of an executor shall not be made liable for a devastavit committed by his principal, until it has been fixed upon him by a suit: but, although this be the case, at law,. yet, surely, a creditor, after a judgment and the return of an execution, “ no effects,” may either proceed against the executors for a devastavit, according to the rule laid down in that case, or may bring his bill in equity to have a discovery of the assets : and such is the present case. The court should'therefore entertain the cause, and settle all disputes between the parties : but, to do this, all the parties, (however remotely concerned in interest,) against whom a decree can be rendered, must be before the Court; and therefore, it was right, in this case, to make Judge Lyons a party. His demurrer must be overruled; and he must be directed to answer. Surely it is unnecessary to cite authorities to prove such plain principles.