such sale, and the proceedings thereon, until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate, in the premises therein mentioned, as was vested in the party, at or after the time when the said lands and tenements became liable to the satisfaction of the said judgment.” O. 108.

22 L.

The legislature, in giving judgments a lien, had particularly in view the lands, that the debtor held at the time when the judgment was rendered. They clearly intended the judgment should attach to these, so that a purchaser would hold them cum oncre. The execution, according to its command, was not only intended to embrace lands, upon which the judgment was a lien, but those held by the debtor, at the time the execution was issued, and a levy made. The command of the f. fa. certainly does not embrace, in terms, or literally, the lands acquired at any time posterior to the judgment, but which had been aliened before the execution issued. Such cannot, with strict propriety, be said to be the "lands of the debtor." They were not the lands of the debtor, and therefore not "bound by the judgment." The deed of conveyance shall be as good and sufficient as the debtor could have made at any time after the said lands became liable to the said judgment. According to our construction, the lands held by the debtor, when the judgment was rendered, as well as the lands held at the time of issuing the execution, are "liable to judgment," and to "the satisfaction of the judgment." The legislature has defined, more explicitly, the deed of the sheriff, and the effect of it. In giving the lien of the judgment, in the command of the fieri facias, in the definition of the sheriff's deed, and in declaring its effects, the legislature has guarded the terms employed, in the most cautious manner, to save lands of the debtor, purchased after the judgment, and aliened before execution.

This inference is most strongly deduced from the command of the fieri facias. If we are to arrive at the law of the court, from the form of the elegit, we may surely, with equal propriety, infer the intention of the legislature, from the command of the fieri facias, as given in the statute. It is a matter of history that this law was drafted by learned counsel, appointed as a committee of revision, who were undoubtedly exactly acquainted with the form of the elegit. We cannot but presume many members of the legislature, who passed it, were intimately acquainted with the common and statute law, touching executions. It must have been well known that the elegit, in form, extended itself to a moiety of all lands of the debtor, held at the date of the judgment, or of which he had been seized, at any tim since. If such had been the intention of the legislature, they would have framed their execution accordingly. For the satisfaction of the execution, those are the lands of the debtor which are bound by the judgment as well as those afterwards acquired, but not conveyed. The terms, in which this construction is expressed, are without ambiguity, and do not require analogies to render them satisfactory. But this point has been put to rest, in the case of Roads v. Symmes. When a rule of construction has been adopted,jupon which titles to real estate depend, it would lead to great inconvenience, if not injustice, to alter it. That decision may have been an innovation upon the established principles of law-it may have been a depar

ture from the true policy, under the circumstances in which we are placed—but it would be a more dangerous innovation, and a wider departure from true policy now to disturb it. 2 Cran. 22, 1 O. R. 1.

Judgment for the plaintiff.

STEWART, ET AL. v. THE TREAS. OF CHAMPAIGNE CO.

A devastavit cannot be prove, in a suit on an administration bon 1, against the administrator and his suretics.

This was a writ of error to a judgment of the court of common pleas, rendered against the plaintiff in error, in favor of the defendant in error. It was an action of debt brought upon an administration bond, the defendants being securities, and the writ, as against the administrators being returned not found. The declaration set out the granting of administration, and the execution of the bond. It then averred a judgment in favor of McAdams against the administrators, and that assetts to a certain amount had come to their hands, which they had wasted; but it contained no averment that any execution had issued on the judgment of the plaintiff against the administrators, or of any adjudication that they had wasted the assetts. Judgment was rendered in the common pleas against the plaintiffs in error, by default, to reverse which the writ of error was brought.

The errors assigned were:

1st. That the record did not show that a devastavit had been established by action, or otherwise.

2d. That it did not appear that any execution had been sued on the plaintiff's judgment against the administrators, before the commencement of this suit.

3d. That the judgment was founded on a devastavit, and the record did not show that any devastavit was found by the Court, the inquisition of a jury, or otherwise.

Mason, for plaintiff. Anthony, for defendant.

By the COURT.

The principal question to be decided in this case, is whether, in an action upon an administrator's bond, brought against the administrator and his securities, the fact of a devastavit by the administrator, can be properly put in issue and tried and determined. The Statute 1, Hen. 8, C. 5, directed the taking of surety for the true administration of goods, chattels and debts. The Statute of 22 and 23, Car. 2, C. 10, commonly called the statute of distribution, declares "that all ordinaries and ecclesiastical judges upon granting administration, shall take a bond of the administrator with two or more sureties, with condition that the administrator shall make a true and perfect inventory of all the goods and chattels of the deceased, and exhibit it unto the registry of the ordinary's Court, by such a day, and to administer, according to law; and to make a true and just account thereof; and to make distribution of the surplus." Un.

der these statutes, much difficulty was experienced, by the English Courts in settling an uniform mode of establishing a devastavit.

Anciently, if the sheriff returned nulla bond, and also a devastavit to a fieri facias de bonis testatoris, sued out upon a judgment obtained against an executor, it was sometimes the practice to sue out a capias ad satisfaciendum against the executor. Several other methods were devised, which need not be enumerated, as they have long since fallen into disuse. The practice in the common pleas, was, upon suggestion, in the special writ of fieri facias of a devastavit, to direct the sheriff to enquire, by jury, whether the executor had wasted the goods, and if the jury found he had, then a scire facias was issued against him, and unless he made a good defence thereto, execution was awarded, de bonis propriis. It afterward became the practice of both Courts, to incorporate the fieri facias enquiry, and the scire facias into one writ, called a scire fieri enquiry. This writ recites the fieri facias de bonis testatoris, the return of nulla bona by the sheriff, and then, suggesting that the executor had sold and converted the goods of the testator to the value of the debts, commands the sheriff to levy the debt, &c. of the goods, &c. of the testator, in the hand of the executor, if they could be levied thereof; but if it should appear to him, by the inquisition of a jury, that the executor had wasted the goods, then the sheriff is to warn the executor to appear, &c. This practice is still frequently adopted.

But the most usual mode of proceeding, is by action on the judgment, suggesting a devastavit. (1, Saund. 219, n. 8.) A fieri facias is first sued out, and upon the sheriff's return of nulla bona, an action is commenced on the judgment, stating the judgment, the writ of fieri facias, and the sheriff's return; and on the trial, the record, the writ, and return will be sufficient evidence to prove the case. And the action may be brought upon a bare suggestion of devastavit, without any writ of fieri facias first taken out. (1, Saund. note 8, cited Wheatly v. Lowe, 1 Sid. 397.) These modes of establishing a devastavit are well settled by the English practice. So far as can be discovered, no attempt has been made to fix a devastavit upon an administrator, by making a suggestion, in the suit against him and his securities, upon their bond. The administrator may traverse the inquisition, as well as the return, and is entitled to the same defence. (Crok. Eliz. Gibson v. Brook, 859.) It cannot be disputed that this has been treated as a matter of practice, under the control of the court, as to which they can establish their own rules. (4, Con. 445.) The practice adopted in this country, appears uniformly to be an action upon the judgment, suggesting a devastavit. (3, Hen. and Mun. 123.-4. Mun. 466. 1, McCord, 76. 4, Con. 445. 4, Bibb, 83.)

The practice, so far as can be ascertained in this state, is to sue upon the judgment making the suggestion. It is probable the provisions of our statute would make a difference in some instances, in the evidence on trial. During the time limited by the Court for the settlement of estates, no execution can be issued upon a judgment rendered against an administrator. We are not, however, in this case, to determine what shall be evidence of a devastavit, under the provisions of our statute. By the 5th section of the act, "defining the du ties of executors and administrators," it is provided that the Court shall require the administrator to give bond, with two or more sufficient securities, conditioned for the faithful performance of the duties required of him by law. The 11th

section declares that a refusal or neglect to settle up the estate shall be deemed a breach of the bond of the administrator. It is probable this was useless legislation, for one of the duties the law requires of the administrator, is to adjust and settle up his accounts, within eighteen months from the date of his letters, unless the Court shall extend the time.

If the non-performance of any duty which the statute requires of an admin. istrator could be assigned as the breach of the condition of his bond, it is clear that this might, upon general principles without any declaratory act. This cause was treated at bar, as if the whole remedy upon the bond against an administrator and his security, depended upon establishing, or suggesting a devastavit. It is not necessary now to decide whether the condition of an administrator's bond was only intended to protect heirs and creditors against a single malfeasance. The condition would indeed, appear to secure the performance of every duty which the law enjoins on an administrator. Nor can this view of the subject disturb the authority of the Treasurer of Pickaway county v. Hall, (3 Ohio Rep. 225.) That was an action on the bond of the administratrix, and the principal breach assigned, was "that she had neglected and refused, though often requested, and demanded particularly on the 30th March, 1827, to pay the said Nicholas and Rebecca," (for whose use the action was brought,) "said Rebecca being one of the heirs of Joseph Glase deceased, the proportion of moneys before that time, come into the hands of the administratrix, to which said Rebecca, as heir at law was entitled."

The Court say, "if the plaintiff claims, as heir, he must show how he makes himself so, that his right may judicially appear to the court, and the proportion due to him ascertained." Again. "It is much the safer doctrine to require proceedings, first against the administrator himself, and only allow resort to the surety, when nothing is to be contested but the question of payment." The questions considered by the Court were, 1st. Whether, in the declaration, the plaintiff had shewed herself, with sufficient certainty, to be heir to the intes tate. 2d. Whether, admitting she was heir, she could sue upon the bond as distributee before settlement, and her proportion had been ascertained. The Court never could have intended to be understood as deciding that no breach of the condition of the bond could be assigned, except non payment to the distributees, nor that the bond could not be forfeited, so as to charge the securities until final settlement. The Legislature, without doubt, intended this bond, as a security, not only for the heir, but for the creditors; and indeed all interested. in a just administration of the estate. But this is aside from the consideration whether devastarit can be assigned in a suit upon the bond of the administrator. A creditor shall not take an assignment of the bond and sue it, and assign for breach the non payment of a debt to him, or devastavit committed by the administrator, for that would be needless and infinite. Archbishop of Canterbury v. Wells. 1 Salk. 315. The first proposition in this decision, has been questioned; (13 John. Rep. 437;)—but it has received the sanction of the Supreme Court of Massachusetts, (9 Mass. 114,) and so far as an authority upon the question under consideration, has never, (that can be discovered,) been doubted. In the case of The People v. Dunlap, the Supreme Court of New York, do not expressly decide that devastavit may be suggested, upon a suit on the bond of the administrator; but rather seemed to permit the recovery, upon

the ground, that she suggestion, under the statute, amounted to an assignment of a breach of the condition. The cases cited by that court are, 1 Wash. 31 and 9 Mas. 114. If the object in citing these authorities, was to maintain the proposition, that in a suit on the administrator's bond, a devastavit might be suggested, they furnish no authority to support it. In neither of those cases is there any such suggestion. The wasting of the estate is in itself a tort.— It is contrary to the oath of the administrator, and the trust and confidence reposed in him. To the suggestion on the inquisition, not guilty may be pleaded. It is like a criminal prosecution. 1 Wash. 31. It would present a strange anomaly to join a security, whose liability arose from contract merely, with a principal charged, in an action ex delicti! Whether we look to precedent and authoritics, or the reason of the thing, the conclusion is forced upon us that a devastavit cannot be established in a suit against the administrator and his securities, upon the official bond. How a devastarit shall be fixed, and how far the securities under our statuse, shall be liable for such malfeasance, must be left open for consideration. The question on the record is whether a devastavit can be first established upon the suit against the administrator and his securities; and we are clearly of opinion it cannot, and that such practice would be warranted by no authority. The conclusions of the Court will be found supported by the following authorities: 1 Salk: 315, Camp. 140. At. 248. 1 Mun. 1. 1 Wash. 31. 9 Mass. 114. 1 Marshall, 448. 1 Bibb. 292. 13 John. 443. 1 Bay, 328. 1 McCord, 76. In these various authorities, with the exception of 13 John. 443, we find no suggestion of devastavit in the declaration upon the administrator's bond, nor is a question made of the liability of the administrator and his securities upon a breach of the condition. Upon the first error assigned, the Judgment of the Court below must be reversed.

No argument was furnished on either side.

BUSH, ET AL. v. CRITCHIELD, ET AL.

It is a general rule, that where a matter does not lie more properly in the knowledge of one of the parties than the other, notice is not requisite.

Where persons covenant as sureties, that their principal shall sell and account for all merchandize placed in his hands, within a stated period, it is not necessary to aver notice to the sccuties, of a failure, in an action on the covenant.

This was an action of covenant, adjourned here for decision from the county of Knox. The declaration contained two counts, upon the same covenant: The second count stated, that on the 27th June, 1835, the defendants convenanted with the plaintiffs, in consideration that the plaintiffs would supply one D. B. McConnel with merchandize to sell on commission, at such per cent. as the plaintiffs and McConnel might, or had agreed upon, that the said defendants would hold themselves responsible for the faithful and honest performance of said McConnel, for one year from that date, and as much longer as said Mc.