Faulk v. Judge of the County Court of Monroe County

2 Port. 538

Opinion

By Mr. Justice PIitchcock.

This was an action of debt brought on an administration bond, against one of the securities, suggesting a devastavit by the administrator.

The declaration does not set out a judgment against the administrator as such, but declares upon a judgment rendered by a magistrate in favor of Wm. A. Stewart, against him generally, for medical attendance during the last illness of the intestate, and a return of nulla bona on the execution. There is a demurrer to the declaration, but two pleas afterwards appear, upon which, a verdict and judgment wereren dered for the plaintiff.

There are several assignments of error, one of which, only will be considered, which brings up the sufficiency of the declaration.

This Court decided in the case of Burke vs. Adkins, et ux.a that before an administrator could be sued for a devastavit, there must have been a judgment de bonis testatoris regularly entered against him. This does not appear to have been done in this case, and it is conceived that a security to an administration bond, stands on as favorable ground as the administrator himself, at least. Whether, when a judgment is had, which would lay the foundation for a proceeding against the administrator, for a devastavit, without first actually fixing a devastavit judicially upon him; it would enable the party to proceed against the security in the bond, it is unnecessary to decide. The principle decided in the case above referred to, being decisive of this case, the judgment must be reversed.

Footnotes

a

See p. 236 of this volume.