Opinion
09-08-1807
Clarke v. Webb and Others
SYLLABUS
The bill in this case was brought for a discovery of the assets to John T. Bickerton, deceased; and for the payment of a judgment at law obtained against his executors, on which a fieri facias issued, and had been returned " no effects." --The executors, when they qualified, gave separate bonds. They and their securities being all dead, except the Hon. Peter Lyons; the persons made defendants to the suit, were their representatives, (except those of G. Winston, who died insolvent, and had none,) the representatives of such of the legatees as were dead, and those legatees who were living. Mr. Lyons, as security for one of the executors, demurred, on the ground that a devastavit had not been previously fixed upon his principal at law.
OPINION
PER CURIAM.
The rule of law as laid down by the Supreme Court in the case of Braxton v. Winslow, 1 Wash. (VA) 31, is well understood and admitted, that, at law, the security of an executor shall not be made liable for a devastavit committed by his principal, until it has been fixed upon him by a suit: but, although this be the case, at law, yet, surely, a creditor, after a judgment and the return of an execution, " no effects," may either proceed against the executors for a devastavit, according to the rule laid down in that case, or may bring his bill in equity to have a discovery of the assets: and such is the present case. The court should therefore entertain the cause, and settle all disputes between the parties: but, to do this, all the parties, (however remotely concerned in interest,) against whom a decree can be rendered, must be before the Court; and therefore, it was right, in this case, to make Judge Lyons a party. His demurrer must be overruled; and he must be directed to answer. Surely it is unnecessary to cite authorities to prove such plain principles.