Miller v. Gee , 4 Ala. 359 ( 1842 )

GOLDTHWAITE, J.

Although the bond of an exeeutor is not expressly required by any statute to be recorded, it is nevertheless a document which is committed: to the custody of the Clerk, and cannot be taken from his office without a violation of his duty. There may be cases, possibly, when its withdrawal might be warranted by an order of the Orphans’ Court* but ordinarily it should remain with the other papers, appertaining to the administration. By the thirteenth section of the act of 1806, [Digest 177, §3,] it is provided that such a bond shall not become void on the first recovery, and may be put in suit and prosecuted from time to time against all or any one or more of the obligors, in the name and at the cost of any person or persons injured by a breach thereof, until the whole penalty shall be recovered thereon. From this it results that the bond cannot be removed, and is propGrly proved by an examined copy, or by one certified by the proper officer. It was therefore unnecessary for the plaintiff to have laid any foundation for the admission of the record, as that was of equal dignity with the original bond, and the copy was properly admitted in evidence.

2. The action is against one of the sureties of the administrator, and it was essential to show what amount of assets came to the hands of the administrator, in order to make out a devastavit. It appears that this bond was executed, the 19th February, 1825; at this period no administrator was liable out. of his individual estate, for not pleading, mispleading, or false pleading in, or to, any action whatsoever; it may therefore be questionable whether the j udgmen t and execution of themselves would be sufficient evidence to. charge the administrator with a devastavit, if the suit was against him, but the act of 1826 expressly enacts, 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. [Dig. 184, §34.]

This matter was considered in the case of Thompson v. Searcy, [6 Porter, 394,] and it is there said, that as the surety can only be liable to the amount of assets, it will be necessary for the jury, not only to find the issue for the plaintiff, but also the extent to which the administrator has wasted the assets.

It was not intended by these remarks to intimate that when the action is on the bond that the jury must ascertain by their verdict the precise extent to which the assets were wasted, but merely that a recovery could be had against a surety only to the extent of a devastavit. The cases there cited are full to the precise point involved in this case, and no peculiar hardship is imposed on the plaintiff, as he can always throw the burthen of proof on the defendant, by showing the amount of assets which came into the hands of the administrator; when this is once established, it rests with the defendant to show they have been lawfully appropriated.

The Circuit Court erred iu considering the judgment as evidence of assets, and the return of nulla bona as sufficient evidence of a devastavit, and for the error in the charge the judgment is reversed and the cause remanded.