4 Watts 169 | Pa. | 1835
The opinion of the Court was delivered by
—The breach assigned in the declaration is in the words of the recognizance. The condition of the recognizance is,
The next branch of the charge raises the question, whether the defendant, by procuring the dismissal of the administrator and the appointment of another, and the surrender to that other of all the proceeds of sale of the land, after this action brought, thereby defeats the plaintiff’s action. It cannot be denied that the plaintiff had a good cause of action at the time the suit was instituted. The defendant’s recognizance was forfeited by the administrator’s neglect to account for the proceeds of sale for more than six years, during all which time the estate was left unsettled, and for more than three years he had removed from the state, as appears by the defendant’s own petition. It was the duty of the defendant to have procured a settlement of the account, and the payment of the plaintiff’s debt by the administrator, agreeably to the terms of the recognizance. If the defendant could discharge the responsibility which had attached, by procuring the dismissal of his principal, I see no end to the proceeding, nor how a plaintiff can escape from being constantly baffled in énforcing his rights. The new administrator also gives sureties: these, on being sued for neglect of the new administrator, should the plaintiff be now turned over to him, may resort to the same expedient, and this may be done on every new occasion. The plaintiff would
An objection to the plaintiff’s right of action has been made in the argument here, which it is proper to notice. It is, that a recovery should first have been had against the administrator, in analogy to the decision in Commonwealth v. Evans, 1 Watts 437; that the nonpayment of a debt by an administrator is not such a breach of the condition of his administration bond as will enable the creditor to sue it, and recover his debt, without a previous suit fixing the administrator with a devastavit. The cases, however, are not analogous. The condition of the administration bond is, that the administrator will well and truly administer according to law, the goods, &c. of the deceased, which shall come to his hands. On this bond the surety is only liable for a devastavit, and there can be no legal evidence of a 'devastavit without a proceeding against the administrator making him responsible de bonis propriis. The liability of the surety, therefore, is contingent. In addition to which, there is the express provision of the second section of the act of the 4th of April 1797, directing in respect to the sureties in administration bonds there referred to, that there shall first be a return of nulla bona to an execution against the administrator, and notice thereof to the sureties that they may show goods and chattels, lands or tenements, in some other county, which may be taken in execution by a testatum fieri facias. See Commonwealths. Evans, 1 Watts 437; Commonwealth v. Bryan, 8 Serg. & Rawle 133. But the administrator here proceeds under a special power given by acL of assembly : he avers the existence of the debts; obtains an order to sell, and thereby receives funds to pay them ; and the condition of the recognizance is,, that he account for these funds. The recognizance is forfeited by
This disposes of the first, second and fifth errors assigned. The other errors do not appear to be sustained, so far as we can judge of them at present.'
Judgment reversed, and a venire facias de novo awarded.