
    Peter O’Conner and Marcus Dennison v. The State, for the use of Joseph Potter’s Adm’r.
    . An administrator de lemis non can maintain a suit against a former administrator for assets of tlie estate which, have come to his hands, and are not accounted for.
    A judgment obtained against the former administrator on such claim, is evidence against him and his sureties in a suit on his administration bond, and can only be impeached by the sureties, by proof of fraud or mistake.
    A general allegation in a declaration on an administrator’s bond, that he did not settle up the estate within the time required by law, and refuses to make settlement, is good. ,
    
      This is a writ of error to the Court of Common Pleas of Brown county.
    The principal facts in the ease are as follows: .On the 8th of May, 1838, Marcus Dennison was appointed, by the court of common pleas of Brown county, administrator, with the will annexed, of the estate of Joseph Potter, deceased. Peter O’Conner and William Middleton, who had deceased before the present suit was brought, became Dennison’s sureties, on his administrator’s bond. At the August term, 1841, of the court of common pleas in Brown county, the will of Joseph Potter was set aside by the decree of said court; and Dennison was at the same time removed from his office of administrator. At the October term, 1841, of said court, Russel Adkins, for whose use this suit is brought, was appointed administrator de bonis non. Adkins, as administrator, brought suit against Dennison, the former administrator, charging him with having a large amount of assets belonging to the estate in his hands unadministered; and at the November term, 1844, recovered a judgment for $513.53. Execution was issued on this judgment and returned indorsed, “ no goods.” Adkins then commenced the present action on the administration bond against Dennison and O’Conner, as survivors of William Middleton, ■deceased.
    In the declaration, two breaches of the bond are assigned. The first breach alleges in substance, that Dennison, as administrator., wholly neglected to settle up said estate; that although the court did not grant him further time to settle, he did not settle up at the expiration of eighteen months from the time he beeame administrator, but continued administrator without making any -settlement, and refused to make such settlement as provided by statute ; and that he still does refuse, etc. To this breach the defendant O’Conner plead nil debit. The second breach sets forth the facts above stated, connected with the administration and removal of Dennison; charges the receipt by .him of .a large .amount of goods and money belonging to the estate of Potter, which he never accounted for, and sets forth the judgment obtained against Dennison for such goods and money, the return of execution, etc.
    To this breach the defendant O’Conner demurred. The court overruled the demurrer, and in default of plea, gave judgment for the plaintiff.
    To reverse this judgment this suit is brought; the errors assigned being—
    1st. That the court of common pleas erred in overruling the demurrer.
    2d. That the court erred in giving judgment for the plaintiff.
    
      John- Joliffe, for the plaintiff O’Conner,
    Cited 3 Rawle’s Rep. 361; 5 Rand. Rep. 51; 1 Gill & Johns. Rep. 270; 1 Serg. & Rawle’s Rep. 549.
    
      David Gf. Devore, for defendant.
   Caldwell, J.

The principal objection urged by counsel to the proceedings of the court below is, that an administrator de bonis non cannot bring a suit against a former administrator; that the judgment against Dennison not being one that Adkins, as administrator, could bring, O’Conner was in no way bound by it; and that the second breach, without such averment of the judgment, would not be good. We are referred to a number of decisions which counsel contend establish the doctrine, that an administrator de bonis non cannot, in a case of this kind, maintain an action against the former administrator. In reference to this question we would merely remark, that on general principles, it would appear reasonable, that the administrator de bonis non, whose business it is to look after the effects of the estate, to collect the claims due to it, and pay the debts owing by it, and to marshal the assets for distribution, should have a right to prosecute a claim against a former administrator; but be this as it may, and be the decisions in other states what they may on this point, our legislature, as we think, has defi nitely settled the question. The statute of 1831, vol. 29, p. 235, under which the administration of this estate was commenced, provides for a suit, by the administrator who may be appointed in the place of any administrator who may have resigned, or been removed, against such administrator for any moneys, assets, rents or profits that may have been received by such administrator, as well as all damage done by such administrator to the estate. The present statute (Swan, 344) contains a similar provision. The second breach, we think, was well assigned, and the court of common pleas decided correctly in overruling the demurrer. The judgment against the administrator is prima facia evidence against the surety in the bond, and he can only impeach it by proof of collusion or mistake.

It has also been suggested in argument that the court erred in giving judgment on the first breach. Whatever question might have arisen as to that breach, had the defendant demurred, we suppose that, after plea and judgment, it is too late for him to avail himself of any such defect. We are of opinion, however, that the breach is well assigned. It is made the duty of the administrator to settle up the estate, and make his return to the court. The allegations are, that he did not settle up the estate, and did not make return to court according to the statute. The damage under it might be nominal; it would still be a breach of the bond.

We see no error whatever in the proceedings of the court of common pleas, and therefore affirm the judgment.  