delivered the opinion of the Court:(4)
This case is submitted for the decision of this Court, on a written agreement, the parties thereby waiving the service of process, and entering their appearance and filing a record of the cause. By an inspection of the record, it appears that it was an action of covenant on an executor’s bond, against the defendants, in the Morgan Circuit Court, and that only two of the obligors in the bond have been sued. The declaration avers the appointment of Miller as executor, and that he took upon himself the burthen of the administration and executorship of the testator ; and that he, with the other defendant, and one Waller Jones, then and there made and entered into a bond which is in exact conformity with the form prescribed by the statute of the State, in such cases, and which is set out in hsec verba. It is then averred, that the defendants have not kept their covenants in the bond contained, but have broken the same, because the relator, Ewing, recovered, by default, a certain judgment against Miller, as executor, for the sum of eight hundred and thirty-four dollars in the Morgan Circuit Court, at the May term of said Court, 1833, with costs of suit, to be levied of the goods and chattels of the testator, in the hands of the executor to be administered ; upon which judgment an execution had been issued and returned nulla bona. The declaration then avers a nonpayment by defendant, Miller, of such judgment, and that he has wasted and devastated the estate, and goods, and chattels, and effects of the testator. It then assigns various breaches of the condition of the bond in not returning an inventory and valuation of the personal estate of the testator, and the not performing the general requirement of the obligations of the bond, and avers that the defendant, Miller, has sold and wasted the estate of the testator. It also alleges that no settlement of the estate has been made in the Court of Probate of Morgan county, although one year had elapsed from the date of the letters testa-, mentary, as by law he was bound to have done; nor has any account of the actings and doings of the executor been presented to such Court. To this declaration there was a general demurrer, and also an admission or agreement, that Waller Jones executed the bond with the other defendants, and that he was jointly bound with the other defendants in the bondthat he was still living, and that the defendants might take advantage of the nonjoinder of Jones upon the demurrer, as though a plea in abatement had been filed. At the request of the parties a judgment pro forma was rendered, sustaining the demurrer.
On this statement of the case, two points seem to be presented for consideration:
1. Whether the declaration is substantially good; and whether, under our laws, the action on the bond could be maintained for a breach of its conditions.
2. Can the action be sustained against two of the obligors only?
On. the first point, it is not perceived why the declaration is not sufficient. It contains all the necessary recitals and averments, and the breaches seem to be well assigned.
The statute relative to wills and testaments, in force July, 1829, in the one hundred and thirty-second section, provides, “That whenever any executor or administrator, shall fail to comply with the provisions of that act, or shall fail to comply with any or all the covenants in his bond, an action may be forthwith instituted and maintained on such bond against.the principal or securities, or both; and the failure aforesaid shall be a sufficient breach to authorize a recovery in the same manner, as though a devastavit had been previously established against such executor or administrator.”
This section gives the action in cases of neglect or refusal to comply with either of the provisions of the law which controls and governs the conduct of the executor, as also, in cases where he shall violate any one or more of the covenants in the bond, and has dispensed with the proof of a devastavit, according to the course of the common law.
Upon the second point, it appears only necessary to observe that the right to sue any one or more of the obligors in the name of the People, for the use of any person who may be injured by the neglect or improper conduct of the executor, is expressly given by the provisions of the sixty-fifth section of the same act. There can, then, be no irregularity or error, in not joining Jones, one of the obligors, and it could form no valid objection on demurrer, nor be cause of abatement. The statute has, in this particular, changed the common law rule as to the joinder of parties.
The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings, not inconsistent with this opinion. The plaintiffs in error recover their costs.
Judgment reversed.
Lockwood, Justice, dissented from the opinion of the Court.