Irvine's Administrator v. Williams

36 Ky. 41, 6 Dana 41, 1837 Ky. LEXIS 134

• Court: Court of Appeals of Kentucky
• Decided: November 1, 1837
• Status: Published

Opinion

Judge Marshall

delivered the Opinion of the Court.

The declaration being upon the administration bond, against the principals and sureties, therein, sets forth a judgment against the administrators, in their fiducial character, with an execution thereon, returned “nulla bonaand, also, a judgment against the administrators, personally, for the same debt, obtained on the ground of an alleged devastavit; but it fails to aver the nonpayment of the latter judgment. And, in this respect, it is, in our opinion, fatally defective.

Although, therefore, we are inclined to the opinion, that the release of the'sureties by the Bourbon County Court, as relied on in the plea, is sufficiently avoided by the averment in the replication,; that, after the first judgment-, and before the release pleaded, the administrators had wasted goods and chattels of the decedent to the value of the judgment, yet, as the demurrer to the replication reached the defect in the declaration, and as that defect was neither waived by the plea, nor supplied by any averment in the replication, it was not erroneous to sustain the demurrer, and render judgment thereon in bar of the aetion.

Wherefore, "the judgment is affirmed.