Cameron v. Justices of the Inferior Court ( 1846 )

By the Court

This action was instituted, upon an administrator’s bond, against Philip Mantz and John A. Cameron, administrators of James Leverich deceased, and their securities, alleging a joint devastavit by the administrators. To prove such joint devastavit, a judgment was offered in evidence, and admitted in the court below, obtained against Mantz alone, as the administrator of Leverich, together with an execution which issued thereon, and a return of nulla bona, by the sheriff. The error assigned is, that the court below held this judgment against Mantz alone was evidence to authorize a recovery against both defendants and their securities, on their administration bond, for the amount of the judgment. The plaintiffs allege a joint devastavit against both administrators. Does a judgment against one of them establish the affirmative of the issue ? We think not. The allegation is, that the defendants as administrators wasted and eloigned the assets of Leverich. The evidence is, that Mantz wasted and eloigned such portion thereof as came into his hands; but one executor, or administrator, is not liable for the devastavit of his co-executor, or administrator, unless he has contributed, in some way, to the devastavit of his companion. — Toller’s law of Executors, 430; Douglass vs. Satterlee, 11 Johns. Rep. 16. It was contended in behalf of the defendants in error, that in the eye of the law, co-executors and administrators are considered as but one person. This position is a correct one for many purposes, and the acts of one will be considered the acts of all, in reference to the administration of the assets; but we think it is well established, both by reason and authority, one co-exccutor, or administrator, cannot be made chargeable with the devastavit of his companions, when he has not, in any manner, contributed thereto. It was also urged on the argument of this case, inasmuch as the suit was on the bond, and all the defendants parties to it, they were all sureties for each other, and the plaintiff was entitled to recover. The answer to this argument is, that the plaintiff was not entitled to recover on the bond, in the court below, until he first established a devastavit against the administrators, according to law — and having alleged a joint devastavit against both of them, in his declaration, he was bound to prove such joint devastavit on the trial, which he failed to do. The judgment against Mantz alone, with the return of nulla bona on the fi. fa. issued thereon, may have been sufficient evidence to charge Mantz with a devastavit ; but it certainly furnished no evidence of a devastavit by Cameron. The liability of the securities to an administrator’s bond is not pdmary, it is an ultimate liability ; and the following cases decide, that suit cannot be maintained on the bond, until a devastavit has first been established against the administrator according to law. — Jones vs. Anderson, A McCord’s Rep. 113 ; Braxton vs. Winslow, &c., 1 Washington’s Virginia Rep. 31 ; Call vs. Ruffin, 1 Call’s Rep. 333 ; Gordon’s Administrators vs. Frederick, 1 Munford’s Rep. 1; Faulk vs. The Judge, of the County Court of Monroe, 2 Porter’s Rep. 538.

Warner, Judge.

Wo are therefore of the opinion, the court below committed error, in deciding the plaintiff below was entitled to recover the amount of the judgment rendered against Mantz alone. Let the judgment below be reversed, and a n,ew trial granted.