
    CHESHIRE, OCTOBER TERM, 1804.
    John Raymond, Administrator of Elizabeth Bachelder, v. John W. Stiles and Jer. Stiles, Administrators of Jer. Stiles.
    An administrator in the solvent course, who has suffered judgment to be recovered against himself by default, cannot plead want of assets to ail action of debt against him on such judgment, suggesting waste.
    The representatives of an administrator, as far as they have assets, are liable for his waste. An action of debt (suggesting waste by the first administrator) may be brought against the administrator of an administrator, upon a judgment recovered against the first administrator.
    The plaintiff, as administrator of E. Bacbelder, exhibited a claim to the commissioners appointed to receive, examine, and adjust the claims of the creditors to the estate of Jer. Stiles, deceased, represented insolvent, and under the administration of the defendants, his sons.
    The claim was this: The intestate, Jer. Stiles, was administrator of Breed Bacbelder. The plaintiff’s intestate, Elizabeth Bachelder, at the Superior Court, Cheshire County, May Term, 1797, recovered judgment against him. as administrator of Breed Bachelder, by default, for certain damages and costs amounting to --■. Execution issued on the judgment, and nulla bona returned; and afterwards the administrator, Jer. Stiles, and Elizabeth Bachelder both died.
    The commissioners wholly rejected the claim; and the plaintiff, at the time the commissioners returned and made their report to the judge of probate, appealed to this court, and the proceedings required in such case by the statute (ed. 1805, 183) were had. The declaration filed in the Probate Office was for money had and received by Jer. Stiles, deceased, to the use of plaintiff’s intestate.
    Upon the opening of the case at a former Term, it was suggested by the Court that tbe merits could not be tried under a count for money had and received;  that the question to be tried was whether Jer. Stiles, the administrator, by suffering judgment to go by.default, had admitted assets. The action to charge him must be debt on the judgment, suggesting waste ; or scire facias with a similar suggestion, and praying for execution de bonis propriis of the administrator (Laws, ed. 1805, 176). This latter remedy was lost by the death of the administrator.
    Accordingly, the counsel for the plaintiff, having obtained leave to amend (by consent), declared in debt on the judgment, suggesting waste.
    The defendants pleaded : ■— 
    
    1. That their testator was not guilty;
    2. That he was not administrator ;
    3. That he had fully administered, traversing the waste ;
    4. The act of confiscation.
    There were issues joined on the first three pleas, and a general demurrer to the fourth.
    It was agreed to submit the cause to the Court for their opinion on the foregoing statement, and that the respective parties should be nonsuit or default, as that opinion should be for the plaintiff or defendant.
    
      
      
         Sed vide post.
      
    
    
      
       It would seem that the proper plea would have been that the administrator had not wasted the estate of his intestate. 3 T. R. 685.
      But not guilty may he pleaded: 1 T. R. 462; so may nil debet: id.; 2 Ld. Raym. 1502, 1503.
    
   The opinion of the Court was now delivered by

Smith, C. J.

After stating the case, he observed that it is extremely clear this action might have been maintained against Jer. Stiles in his lifetime. He could have made no defence. Suffering judgment by default was an admission of assets. He could not, on the scire facias, or to the action of debt, deny assets, Whenever an administrator does not administer in the insolvent course, be admits assets, provided tliere is any estate to be apportioned among the unprivileged creditors. (II. Manuscript, Descent, and Last Wills, 1038-1057.)

At common law it seems that representatives of representatives were not liable for the devasiavits of those they represented. The reason given does not seem to be a good one ; viz., because they could not be supposed to know how those they represent had disposed of the goods. But in chancery it was otherwise; they were liable as far as they had assets. Creditors may, in equity, follow the assets into whose hands soever they come. To remedy the common-law doctrine, which was found inconvenient, 30 Car. II. c. 7, and 4 & 5 W. & M. c. 24, provide that, where the representative shall waste or convert to his own use goods, &c., of his principal, his representative shall be chargeable in the same manner as he who wasted, &c., should or might have been. 1 Wms. Saund. 216, 219, &c.

It is believed that this doctrine of the common law was never admitted here, or, if it.was, that the statute remedy (which was as early as 1677-1692) was admitted also.

The principles laid down by the Court in Hambly v. Trott, Cowp. 371, seem clearly to show that the doctrine was not well founded at common law. The estate of the administrator may be presumed to be benefited by the property in respect of which he is liable. If he received his principal’s money, then he is indebted to his creditors to the same amount; he received the money to their use. If he sold the goods of his principal, the same thing follows. If he used, and consumed in using, the goods, his estate gained the value ; he was enriched by his executorship or administration to the value. The injury done to the estate of the deceased will generally be attended with proportional gain to the representative. Tie gains what the estate has lost. Property is acquired in respect of which he is in equity (at least) chargeable. In this case we may presume that Jer. Stiles received value from the estate of Breed Bachelder to the amount of this judgment, and that in consideration thereof he took upon himself this debt. The plea, it is presumed, might have been different. Nil debet would have been good.

We have enlarged the remedy against representatives of deceased persons. By a late statute, ed. 1805, 96, actions for misconduct in office may be prosecuted against the representative of a sheriff; trespass for carrying away goods, &c.

Upon the whole, the Court are clearly of opinion that the defendants are liable; that the common-law doctrine never prevailed here, at least never since the statutes of Charles and William; but that we have adopted the chancery doctrine, which is more just, and not unfit to be carried into execution by a court of common law; that the deceased administrator, by suffering judgment to go by default, admitted that he had received assets to answer this debt.

The defendants were defaulted, , 
      
       It is presumed Stiles did not administer Breed Bachelder’s estate in the insolvent course of administration.
     
      
       3 G-. Bacon, 99; 1 Salk. 314; Com. Dig. Administration (B. 15); 2 Ld Raym. 971.
     
      
       See Wheatly v. Lane, 1 Wms. Saund. 216-219, and notes.
     
      
       I. As to the first proposition, see Hill v. Rogers and other cases cited in note to extracts from Manuscript Treatise on Prohate Law, post.
      
      II. Chancellor Kent said, “ But for devastaoits or wrongs to property, the personal representatives of the deceased, who committed the tort, were made answerable by the statute of 30 Car. II. c. 7, and 4 & 5 W. & M. c. 24; and doubtless the same law exists in this country.” 2 Kent, Com. 416, n. e.
      
      These statutes are held to be in force in Maryland. Sibley v. Williams, 1830, 3 Gill & J. 52. Contra, in Tennessee. Griffith v. Beasley, 1837, 10 Yerg. 434.
      Whether a suit can he maintained against an executor of an executor by a creditor of the first testator, who had not recovered judgment against the first executor in his lifetime, quaere.
      
      See, in the affirmative, Williams’s note to Wheatley v. Lane, 1 Saund. 216, 219 e; Sibley v. Williams, ubi sup.; Anderson, C. J., in Gregory v. Harrison, 1851, 4 Fla. 56, 77-79; Green, J., in Coleman, Administrator of Wernick, v. M’Murdo, 1827, 5 Band. (Va.) 51, 79-84.
      
        Contra, Coalter, J., in 5 Rand. (Va.) 104-108.
     