Thomas's Administrator v. Commonwealth, ex rel. Thomas.

Court of Appeals of Kentucky

Thomas's Administrator v. Commonwealth, ex rel. Thomas.

26 Ky. 121, 3 J.J. Marsh. 121, 1829 Ky. LEXIS 191

DecidedDecember 31, 1829

StatusPublished

This text of 26 Ky. 121 (Thomas's Administrator v. Commonwealth, ex rel. Thomas.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thomas's Administrator v. Commonwealth, ex rel. Thomas., 26 Ky. 121, 3 J.J. Marsh. 121, 1829 Ky. LEXIS 191 (Ky. Ct. App. 1829).

Pincite

Opinion

Judge Robertson

delivered the opinion of the Court.

This is a suit for $8 SO cents, in the name of the commonwealth, for the use of Dent Thomas, against the plaintiffs in error, on an adminis-tation bond, suggesting a devastavit. On the issue of ’•'•plene administravit vel non,” the jury found a verdict ibrthe defendants in the action, and the court, thereUpon, rendered a judgment against them for the costs.

lhere are two errors m the record:

1st. The declaration is insufficient. It does not ■tver that Dent Thomas had ever issued a fieri facias on his judgment, or that there had been a return : mulla bona.” Such an allegation is indispensable, A return of “nulla bona” on a fieri facias, against the personal representative, is necessary to fix the devas-iavil. The sureties are Hot responsible until such a return shall have been made. If the declaration do not aver such return, it shows no cause of action on the official bond. This proposition is so self-evident, and has been so often decided, that it would be useless to employ argument or cite authority to prove it.

2d,'As the issue was found for the defendants in the action, the court had no right to render judgment against them for costs; and if such a judgment could be tolerated, it should not have been against the ad-ministratrix, de bonis propriis.”

Marshall, for plaintiff.

Wherefore, the judgment of the circuit court is reversed, and the cause remanded, with instruction? to arrest the judgment and set aside the verdict.

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Judge Robertson

delivered the opinion of the Court.

This is a suit for $8 SO cents, in the name of the commonwealth, for the use of Dent Thomas, against the plaintiffs in error, on an adminis-tation bond, suggesting a devastavit. On the issue of ’•'•plene administravit vel non,” the jury found a verdict ibrthe defendants in the action, and the court, thereUpon, rendered a judgment against them for the costs.

lhere are two errors m the record:

1st. The declaration is insufficient. It does not ■tver that Dent Thomas had ever issued a fieri facias on his judgment, or that there had been a return : mulla bona.” Such an allegation is indispensable, A return of “nulla bona” on a fieri facias, against the personal representative, is necessary to fix the devas-iavil. The sureties are Hot responsible until such a return shall have been made. If the declaration do not aver such return, it shows no cause of action on the official bond. This proposition is so self-evident, and has been so often decided, that it would be useless to employ argument or cite authority to prove it.

2d,'As the issue was found for the defendants in the action, the court had no right to render judgment against them for costs; and if such a judgment could be tolerated, it should not have been against the ad-ministratrix, de bonis propriis.”

Marshall, for plaintiff.

Wherefore, the judgment of the circuit court is reversed, and the cause remanded, with instruction? to arrest the judgment and set aside the verdict.

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Bluebook (online)

26 Ky. 121, 3 J.J. Marsh. 121, 1829 Ky. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomass-administrator-v-commonwealth-ex-rel-thomas-kyctapp-1829.