ministrators Justices of MARCH, actual case then before the Court, to be understood as re1810. quiring an action of debt suggesting a devastavit, before an Gordon's Ad- action could be maintained against the securities of the exeV. cutor or administrator: in short, whether three suits were Frederick. necessary; 1st. A suit against the executor or administrator, as such, to establish the amount of the debt due from the testator or intestate; 2dly. A suit against the executor or administrator, suggesting a devastavit, and a verdict and judgment therein for the plaintiff; and, 3dly. An action on the administration bond. This was an action of debt brought in the County Court, in the name of the Justices of Frederick, at the instance of N. Cartmill, against the administrators of Gordon and their securities, in the administration bond. The pleadings disclosed a former judgment recovered by the relator (Cartmill) against the administrators, on the pleas of payment, and fully administered; but it did not appear that there had been any INTERMEDIATE suit fixing a devastavit. The Jury found a verdict for the plaintiff, subject to the opinion of the Court, "whether an action on the administration bond could be maintained, without shewing in evidence, in such action, a judgment in an action of devastavit against the administrators." The County Court gave judgment for the defendants, which, on appeal to the District Court, was reversed; and from that judgment of reversal, the defendants (the administrators and their securities) appealed to this Court. Williams, for the appellants, relied on the case of Braxton v. Winslow, (1 Wash. 31.) recognised in Call v. Ruffin, (1 Call, 333.) as having settled the point, that an action cannot be sustained on an administration bond without a previous suit, fixing a devastavit, against the executor or (c) 1 lien. & administrator. By a note to Turner v. Chinn,(a) it apMunf. 54. pears, that the Judges consented to reconsider the case of Braxton v. Winslow; but no opinion was expressed on the point. The question is, therefore, not influenced by what MARCH, fell from the bench in the last-mentioned case. 1810. ministrators V. Justices of But an additional reason may be given why a previous Gordon's Ad suit is necessary against the executor or administrator, to establish a devastavit, before an action is brought against Frederick. the securities. The law declares, that no security for an executor or administrator shall be chargeable beyond the assets of the testator or intestate, on account of any omission or mistake in pleading, of the executor or administrator.(a) It is, therefore, reasonable, that the amount (a), 1 Rev. Code, p. 165. of assets, wasted by the executor or administrator, should s. 33. be ascertained by the verdict of a jury, before the securities are called on. Munford, for the appellees, observed an omission in the judgment of the District Court. They had failed to enter such judgment as the County Court ought to have rendered; but this Court might supply it, as was done in Mantz v. Hendley.(b) The judgment reversing that of the Coun- (5) 2 Hen. & Munf. 318. ty Court, being correct, should "so far" be affirmed; and the appellees, in that event, should recover their costs, "being the party substantially prevailing." In this case the verdict was general in favour of the plaintiffs, as to every thing in controversy between the parties, except the point submitted to the Court, which was, "whether an action on the administration bond could be maintained without shewing in evidence, in such action, a judgment in an action of devastavit against the administrators." On such a verdict, every fact or circumstance, which (independently of the implied finding that no judgment had been obtained in an action of devastavit) could justify a decision in favour of the plaintiff, must be understood to have been proved to the Jury.(c) We have, (c) Ford v. Gardner, 1 therefore, a right to presume that, in the original suit Hen. & Muf. brought to establish the debt, a verdict was found against the defendant on an issue joined on the plea of plene administravit, by which verdict it was ascertained, that he 72. MARCH, had assets sufficient to satisfy the plaintiff's claim; that 1810. (judgment being entered accordingly) a writ of fieri fa ministrators V. Justices of Gordon's Ad- cias issued, and was returned nulla bona. The question propounded by the Jury to the Court was, whether, after Frederick all this had been done, it was necessary for the plaintiff to obtain another judgment, in an action suggesting a devastavit, before he could bring suit on the administration bond? On which question, I contend, the decision of the County Court was erroneous. Prac. 933. 1020. The devastavit was sufficiently fixed by the proceedings in the first action; so far, indeed, that the sheriff, instead of returning nulla bona, might have returned a devastavit positively; in which case, "the plaintiff might have had execution immediately against the defendant by capias ad (a) Tidd's satisfaciendum, or fieri facias de bonis propriis."(a) The Sheriff having neglected to do this, the plaintiff's remedy, in England, would have been " by scire fieri inquiry, or action of debt upon the judgment suggesting a devas(b) Ibid.1019, tavit,"(b) it being very questionable whether, in that country, an action can be brought against an administrator on the administration bond, assigning a devastavit as the breach of the condition; (c) and it being certain that no bond and security is there required of an executor. The not exhibiting a true inventory or account, it seems, may be assigned as a breach ; (d) and in the case of The Archbishop of Canterbury v. Willis, 1 Salk. 251. pl. 3. cited in 2 Bac. Abr. p. 409. Dublin edit.(e) a suit was maintained on the bond, at the instance of a creditor, who assigned as a breach the failing to pay him his debt. But, whether thelast-mentioned action could have been supported, if the defendant had made a proper defence, is doubtful, the (See the authorities being contradictory (f) (c) Toller's Law of Executors, 382. (d) Ibid. (e) Title Ex ecutors, &c. (E. 11.) cases cited in Toller, p. 382. In this country, the proper remedy appears to be an action on the bond, which our act of Assembly directs to be given by executors as well as administrators; the object of that act appearing to be to substitute the action on the bond for debt suggesting a devastavit; since both, successively, 1810. in the same case, are evidently superfluous. The bond may MARCH, be put in suit for the benefit of any person injured; the devastavit may be assigned as a breach of the condition; Gordon's Adand the plaintiff is bound, in that suit, to prove every circumstance which it is incumbent upon him to prove in the Frederick. other. ministrators 31. V. Justices of - But the case of Braxton v. Winslow(a) is relied upon (a) 1 Wash. as establishing the position, that both actions are necessary. That case has been frequently misunderstood; and, in the present instance, is misapplied. The language used by the Court (as expressed by the reporter) was unfortunately equivocal and inaccurate, but plain enough, when construed (as it ought to be) with reference to the subject matter before them. The suit having been brought on the administration bond, without any previous action against the executor, the Court decided, (with great propriety,) that a previous action should have been brought to establish the debt, and fix the devastavit; but they did not mean to decide, that two such actions were necessary. If the latter had been their meaning, it would not have been authority; because the case then under consideration did not call for a decision of that point; for the principle is well settled, that opinions of Judges are authority, so far as they apply to the cases actually before them, and no farther. The dictum that an executor shall not be presumed guilty of a devastavit till it is found against him by a verdict, seems to have been pronounced obiter only, without being requisite to the decision of that case. But, even admitting it correct, it does not follow that a verdict, in an action suggesting a devastavit, was intended by the Court; it might be equally effectual, and adequate to the purposes of justice, if rendered on an issue joined on the plea of plene administravit in the original action, and coupled with a subsequent fieri facias, and return of nulla bona. The case appears to have settled nothing, but that a devastavit ought to be fixed, before an action can be maintained on the administration bond. This question still re ministrators Y. Justices of MARCH, curs, what is requisite to fix a devastavit? And this is 1810. answered, by the authorities already cited, as well as by Gordon's Ad- the reason of the thing, that a devastavit is fixed, whenevér it judicially appears, by the executor's own admission, or the finding of a Jury, that he had assets, and by the return of a sworn officer, that he had wasted or concealed them. The truth of the return may, indeed, be controverted by the defendant in the action on the bond; but, prima fucie, it fixes the devastavit sufficiently to warrant the action. The same defence may be made, and the same evidence is admissible on both sides, in the action on the bond, as in that suggesting the devastavit. For what purpose, then, (but for the benefit of lawyers,) should three actions be resorted to, when two are sufficient? If it be said "for the protection of the securities, who, not being parties to the first action, ought not to be bound by a judgment improperly or collusively obtained against their principal;" I answer, that neither are the securities parties to the action suggesting the devastavit. Every objection, therefore, to a suit against them in the second instance, applies equally in the third. The act of Assembly in favour of securities, (referred to by Mr. Williams,) cannot have the effect of preventing an action on the bond; the plain intention of that act being to provide that, notwithstanding any omission or mistake in pleading, of the executor or administrator, the securities (under the plea of conditions performed) may avail themselves of any defence to which their principal might have resorted on the plea of fully administered. Its meaning cannot be that, if the executor omit to make a proper defence, or be guilty of a mistake in pleading, no action shall lie against his securities until a second action (in defending which he may be equally negligent or unskilful) shall have been brought against himself. Much less can it mean that no action shall lie against his securities, in a case in which the executor has positively admitted assets, or a Jury have found that he has enough to satisfy the plain |