Little v. Knox

15 Ala. 576

Opinion

DARGAN, J.

It is contended, that the decree against Steele, alone, on which.execution was issued, and returned. no property, does authorize an execution against the joint securities of the administrators, for the reason, that by joining in a joint bond, they become liable for the acts of each other, and both are bound to protect the securities, against the acts of each.

The bond, however, is not before us, and we cannot pronounce an opinion upon its legal effect. It may however be said, that the authorities referred to by the plaintiffs counsel, show, that if co-administrators join in a joint bond, they are liable for the acts of each' other, and both bound to protect the joint securities from the consequences of the acts of the other. 5 Pick. 96; 7 B. Monroe, 15 6 Gill & John, 288; 2 Dev. Eq. 115; 2 Conn. 536 ; 5 Humph. 453. Whether the bond, however, will have the effect to make each co-administrator liable for the acts, of the other, will depend on the intention of the parties, to be gathered from the instrument itself. Perkins and Elliott v. Mayfield and wife, 4 Ala. Rep. 417. The orphan’s court, however, erred in dismissing the supersedeas.

To entitle the plaintiff to an execution on the return of nulla bona, upon one issued on a final decree', rendered against an administrator, he must show, that he has not only obtained a valid decree, but that a valid execution has been issued and returned, no property.

The execution issued against Steele, was not made returnable tó a regular term of-the county court, but to a day appointed by the orphans’ court: such ah execution is void. For although it issues on a decree of the orphans’ court, it must be made returnable to the semi-annual term of the county court. Westmoreland v. Hale, 11 Ala. Rep. 127; Graham & Abercrombie v. Chandler, 12 Ala. Rep. 829.

The judgment of the county court must be reversed, and| the cause remanded. !