*Wednesday, March 27th.
The Judges, BROOKE, TUCKER, and FLEMING, (ROANE not sitting in the cause,) pronounced their opinions. JUDGE BROOKE.Though I do not entirely subscribe to the opinion of the district court, delivered in its instruction to the jury in this case; j'et, confining that opinion to the subject matter to which it related, I think it was correct enough. The order obtained in King William court, upon the motion of the plaintiff against the sheriff of that court, to whom administration of the estate of Judith Browne had been committed, and the return of the sheriff thereon, “that no estate of the said Judith Browne could be found,” was certainly no evidence of her having wasted the estate of William B. Browne, her intestate, to charge her secu-. rities in this action. I am, therefore, of opinion, the judgment of the district court must be affirmed.
JUDGE TUCKER. I am of opinion that the judgment is perfectly correct.
JUDGE FLEMING.It appears to me there is no error in the judgment of the district court; it being sustainable on two grounds; 1st. The declaration, according to former decisions of this court, being uncertain and insufficient to maintain the action ; and, 2dly. There is no evidence of a devastavit on the part of the adminis-tratrix of William B. Browne; without proof of which the securities were not responsible, nor liable to an action on the administration bond: and no less proof than the verdict of a jury is sufficient to convict an executor or administrator of a devastavit, according to the decision in the case of Gordon’s Adm’rs v. The Justices of Frederick, (a) which was founded on principles laid down in the case of Call v. Ruffin ;(b) and, therefore, the instruction of the court to that effect, as stated in the bill of exceptions, was correct and proper.
I am of opinion that the judgment be affirmed.
1 Munf. l.
1 Call, 333.