1851 July Term. Lewisburg. ALLEN and ERVINE v. MORGAN'S adm'r & als. (Absent Cabell, P. and Daniel, J.*) August 27th. In a bill by a creditor against an administrator and his sureties, charging a devastarit by the administrator, and the liability of his sureties for it, though some of the sureties insist in their answer that under the circumstances one of the sureties is liable to the others, if they are liable to the plaintiff, though there is a decree for the plaintiff, and though it appears from the proofs that the devastavit was occasioned by a payment of a debt of inferior dignity to the surety sought to be charged, yet it is not a proper case for a decree between the co-defendants. This was a bill filed in the Circuit court of Botetourt county by William Morgan against William A. Watson, administrator of Robert Tinsley, and his sureties in his official bond, among whom were Bernard Owen and the appellants, James S. Allen and Robert Ervine. The bill charged that the complainant had, in 1829, recovered a judgment against Robert Tinsley in his lifetime for 1055 dollars 96 cents, with interest from the 28th of January 1823, until paid. That Tinsley died in 1839. That a scire facias to revive the judgment against Watson, the administrator, was issued in April 1839, and served upon him. That the administrator had been guilty of a devastavit in paying away the assets of his intestate's estate. That Tinsley had in his lifetime executed a bond to the firm of Watson & Owens, of which firm the administrator was a partner, for the sum of 4721 dollars 57 cents; and they had, *Judge Daniel had been counsel in other cases out of which this originated. i851. July Term. Ervine V. Morgan's after Tinsley's death, assigned this bond to Bernard Owen, who brought suit upon it against the administrator; and that he, with the knowledge of the plain- Allen and tiff's judgment, had confessed a judgment for the amount of the bond, with interest, for the purpose of giving the assignee of Watson & Owens a preference over the other creditors of the estate. That upon this judgment execution was immediately issued, and was levied on the slaves of the intestate in the hands of the administrator, which were sold to the amount of 2378 dollars 37 cents. Watson answered, calling for proof of the plaintiff's judgment against Tinsley, and denying notice of it. But the scire facias to revive the judgment seems to have been served upon him before the confession of judgment to Owen. The defendant also set up other grounds of defence, which it is not necessary to notice. Bernard Owen also answered, taking the same grounds. of defence as Watson. The other sureties, Allen and Ervine, also answered, and insisted that if the plaintiff's judgment was entitled to priority over that of Owen, so that the application of the assets to the satisfaction of the latter was a devastavit, then that Owen should be held responsible personally to the creditors of Tinsley's estate, before resort was had to the other sureties; because said Owen was one of Watson's sureties, as administrator of Tinsley, and had no right to unite with him in the misapplication of the assets of the estate, and thereby to benefit himself by the injury of his co-sureties. The accounts of the administrator were referred to a commissioner, who, excluding the payment to Owen's debt, reported a balance due to the estate of 2728 dollars 51 cents, with interest on 2617 dollars 31 cents, a part thereof, from the 31st of December 1840, until 1851. July Term. The cause came on to be heard in April 1846, when the court rendered a decree in favour of the plaintiff Allen and against the defendant Watson, and all his sureties. From this decree Allen and Ervine applied to this court for an appeal, which was allowed. Ervine V. Morgan's Michie, for the appellants, and Boyd, for the appellees, submitted the case upon notes. The questions were 1st. Whether the court below should have decreed between the co-defendants, without a cross bill. And 2d. Whether, under any state of the pleadings, the other sureties of Watson were entitled to a decree over against Bernard Owen. ALLEN, J. delivered the opinion of the court. The court is of opinion that the only questions raised by the issue between the complainants and defendants in the court below were the devastavit charged to have been committed by the administrator of Robert Tinsley, and the joint liability of his sureties in his official bond therefor; and that upon the case as made out by the pleadings and proof between the said complainants and defendants, no decree could have been properly rendered as between the co-defendants. The court, therefore, without deciding upon the equities of the co-defendants, as amongst themselves, is of opinion, that as between the complainants and defendants in the court below, there is no error in the decree. It is therefore adjudged and ordered that the same be affirmed, with costs to the appellees. An instrument, binding the parties thereto to pay a sum of money, purports to be under their hand and seals; but it is signed by one of the parties without a seal, and by the other parties with seals to their names. HELD: Upon demurrer, that one action of debt may be brought against all the parties. This was an action of debt in the Circuit court of Augusta county, brought upon the following paper: $485. One day after date we promise and bind ourselves, our heirs, &c., to pay to George Rankin or order the sum of four hundred and eighty-five dollars, for value received. As witness our hands and seals. The action was in the name of George Rankin, against all the other parties to the paper; and the declaration complained against Jacob C. Roler and John Crawford, late partners under the firm of Roler & Crawford, Benjamin Weller and John W. Roler, and set out the paper as a promissory note as to Roler & Crawford, and as a writing obligatory as to Weller and John W. Roler, and charged that all the parties had jointly promised and bound themselves to pay, &c. The defendants appeared and pleaded payment; and at another day they demurred to the declaration; the 1831. July Term. 1851. July Term. Rankin V. Roler & als. plaintiff joined in the demurrer, and, upon the hearing of the case, the court rendered a judgment for the defendants, upon the demurrer. Whereupon the plaintiff applied to this court for a supersedeas, which was awarded. Fultz, for the appellant, and Michie, for the appellees, submitted the case. DANIEL, J. If the plaintiff had in this case declared on the paper, of which profert is made, as the joint bond of Roler, Crawford, Weller and John W. Roler, I am not prepared to say that such a declaration might not have been good: For though there are but two scrolls to the paper, one of which is opposite to the name of Weller and the other opposite to the name of John W. Roler, and though the names of Roler and Crawford are signed as a firm, yet it might be that each of the last named parties signed the paper, and adopted one of the scrolls upon it as his seal; or that one of them executed the paper as the bond of each, being duly authorized by the other so to do. The plaintiff, however, does not so treat the transaction, and, most probably, because the facts of the case would not justify him in so treating it. He declares on the paper as the promissory note of Roler & Crawford, and the bond of Weller and John W. Roler; and the simple question presented is, whether upon such a paper a joint action of debt against all the parties will lie. If such an action can be maintained, it must be because the undertaking of the parties is either joint and several or merely joint. That is not a joint and several undertaking the plaintiff in error concedes in his petition, and such a conclusion necessarily follows from the language of the paper, "We promise," &c. That it is not one joint undertaking is, I think, equally plain. The paper contains upon its face two instruments, and |