Opinion
02-10-1813
Hairston v. Hughes and Others
In an action of debt, instituted in the year 1798, on an administration bond, in the names of Hughes and others, justices of Henry county, who sued for the benefit of Stephen Smith and Bird Smith, executors of Guy Smith, deceased, against James Lyon and Sarah his wife, (late Sarah Lindsay,) Abraham Penn, George Hairston, and Jarrett Patterson, surviving obligors of Sarah Lindsay, (now Sarah Lyon,) John Lindsay, Abraham Penn, George Hairston, and Jarrett Patterson, the declaration set forth a bond, in the usual form, conditioned for the due administration of the estate of Jacob Lindsay, deceased. by the obligors, Sarah and John; and charged, as a breach of the condition, that in a suit, in the high Court of chancery, in behalf of the said Stephen Smith and Bird Smith, executors of Guy Smith, deceased, against the said administrator and administratrix, they were directed by a decree of the said Court to pay to the said plaintiffs a certain sum of money " out of the goods and chattels of the said Jacob Lindsay, in the hands of the said administratrix to be administered; " that sufficient goods and chattels, belonging to the estate of the said Jacob Lindsay, deceased, to satisfy the said decree, came to the hands and possession of the said administrator and administratrix, but were by them eloigned, wasted, and converted to their own use, whereby the said decree remained unsatisfied.
Plea " conditions performed," and issue thereupon. The suit having abated as to all the defendants, except George Hairston, a verdict was found for the plaintiffs, assessing their damages to 3261. 5s., beside their costs; " and that goods and chattels, which were of Jacob Lindsay, deceased, in the writing obligatory aforesaid named, came to the hands of the said Sarah Lindsay, administratrix, and of John Lindsay, administrator, of Jacob Lindsay, deceased, to be administered, of the value of the damages and costs aforesaid, which they wasted; " subject to the opinion of the Court upon a point reserved at the trial, viz., " whether this action could be maintained against the securities of Sarah Lindsay and John Lindsay, on their administration bond, upon the return of 'no effects in the hands of the administrators,' by the sheriff of Patrick county, on a fieri facias, which issued from the high Court of chancery on a decree which the plaintiffs in this cause had therein obtained against the said administrators, without first showing a devastavit in a suit against the said administrators?"
The district Court was of opinion that, on this point reserved, the law was for the plaintiffs, and therefore entered a judgment according to the verdict; from which the defendant, Hairston, appealed.
Judgment reversed.
The president pronounced the following opinion of this Court.
OPINION
" It not appearing by the decree, which is set forth in the declaration, that a waste of the estate of the intestate is established by that decree against the administrator and administratrix, the principals in the bond; the Court (not deciding, at this time, what would be the effect of the decree, if it had so appeared, in a suit against the security only, or against the security and the principal jointly) is of opinion that the said judgment is erroneous."
Judgment reversed, and entered for the appellant.