#### Biggs and others, Appellants, v. Postlewait and others, Appellees.

APPEAL FROM ST. CLAIR.

A judgment can not be rendered against the security in an administration bond, nor is he liable to an action, until a devastavit, by suit, has first been established against the administrator.

Opinion of the Court by

Chief Justice Wilson.

This action is brought for the use of Joseph Payne, one of the heirs at law of John Payne, deceased, against the administrator of the estate of said Payne, deceased, and his securities, upon an administration bond, taken in pursuance of a territorial statute. The administrator and his securities are both declared against, but one of the securities only is brought into court. The breaches assigned in the declaration are, that the administrator had not returned an inventory or sale bill —that he had not administered, but wasted the assets, &c., *199and avers, that goods and chattels to a large amount, came to the hands of the administrator, but does not aver any judgment against the administrator. To this declaration there is a demurrer and joinder, which was sustained by the court. The question is, as to the correctness of the decision of the court, upon the demurrer.

Blackwell, for appellants.

Cowles, for appellees.

The statute, that requires the bond to be taken, upon which this action is brought, is intended for the security of the intestate’s estate, and the benefit of heirs and creditors; but they must bring themselves within its object and intent, before they can claim its benefit. A person claiming to be an heir, and entitled to a distributive share of the intestate’s estate, must show himself to be thus entitled, in the ordinary course of law, by a judgment, or decree against the administrator, establishing the amount of his demand, and a devastavit by the administrator. Until these facts are established, the security is not liable—his undertaking, as regards claims against the intestate’s estate, is collateral, and can only be enforced, upon its being made to appear that the administrator has failed to do that, which by law, he was required to do. See 1 Wash., 31.

There is no averment in the declaration, that any judgment has ever been obtained against the administrator. This, I think, is essential, in order to support the present action. It would be unreasonable, and against principle, to make a third party liable in an action for a default, which it is not pretended he has committed. The judgment of the court below is affirmed, (a) , (1)

Judgment affirmed.

(a)

It is necessary, after a judgment against an executor or administrator, as such, to establish a devastavit by means of a second suit, before an action can be maintained on the administration bond. Gordon’s administrators v. The Justices of Frederick, 1 Munford’s Rep., 1.

It seems, that the executor or administrator must be convicted of a devastavit by a verdict in a second suit, finding that he has wasted the assets, or has eloigned, disposed of, and converted the same to his own use, before an action can be sustained against the sureties. Catlet and others v. Carter’s executors, 2 Munford, 24.

(1)

This decision was followed in the cases of Greenup v. Woodworth, post, and same v. Brown, post. But the act of 1829, (Purple's statutes, 1218, Sec. 126, Scates' Comp., 1207,) dispenses with the necessity of first establishing a devastavit before the administrator or executor, or his securities can be made liable. The People v. Miller et al., 1 Scam., 86.