1 Fla. 242 | Fla. | 1847
It is an established rule of pleading that “if the plaintiff by his replication show that he has no cause of action, there shall be judgment, though the bar be defective, for the Court will form their judg-ment from the whole record.” Arch. PI. & Ev. 240.
The replication of plaintiff to a plea by defendant of non damni-ficatus to debt on bond of Sheriff, sued as administrator by virtue of his office, assigns for breach, that while the said Redding was Sheriff and administrator ex officio of James K. Holloman deceased, he the said Redding received as such administrator as aforesaid, divers large sums of money and divers large quantities of goods and merchandize which he should have paid over and delivered to said Wilkins C. Smith as surviving partner of said Holloman.”
To this there was a demurrer, and we are of opinion it was rightfully sustained by the Court below. The design of the replication, as we conceive, is to show that as administrator of the deceased partner, the Sheriff had received this money and these goods and ■chattels. If so, the replication shows no cause of action in plaintiff.
Admitting that the Sheriff as administrator, was liable for this money and these assets, his securities on the administration bond are only liable after judgment of a court fixing the liability against him as administrator. 9 Mass. 114. 3 John. 437. 1 Wash. Rep. 31. 4 McCord 113.
For these reasons the judgment is affirmed with costs.