delivered the following opinion of the court.
In this action, (which is an action of debt against an administrator, suggesting a devastavit,) one of the sums demanded is 1391. 2s. with interest from the 23d of February, 1803, till paid, with the costs of a former suit. It also appears from the declaration, that this sum was that by which the sum recovered in a former action, viz. 2781. 4s, ought to have been discharged. On the authority of the case of Ragsdale vs. Batte, in this court, this penal sum was the one for which the appellee ought to have declared, and which in no event could be exceeded. The declaration being, therefore, for the sum conditioned to be paid in the judgment aforesaid, with interest thereon till paid, is not only erroneous in departing from the foregoing standard, but, in event, might have subjected the appellant to the payment c>f a greater sum than, by the appellee’s own shewing, in his declaration, he is entitled to recover. On the ground of this defect in the declaration, the court is of opinion, that the judgment should be reversed» and rendered for the appellant.