
    William Hall versus Charles Cushing, Administrator of Charles Paine, Esq., deceased.
    
      \n action against the assignee of a bankrupt does not survive against the administrator of such assignee.
    The action was in assumpsit, and was originally brought against the defendant’s intestate, as he was assignee of the effects of William P. Smith, a bankrupt. The said intestate dying during the pendency of the suit, the defendant was admitted to take upon him the defence of the action.
    The declaration contained three counts. In the first the plaintiff alleges that the said Smith, as principal, with himself and the said Paine, as sureties, on the 20th of February, 1802, became bound in a bond to the United States in the sum of 1950 dollars, conditioned for the payment of 1075 dollars on or before the 21st of December then next, * being for duties on certain merchandise imported into the port of Boston by the said Smith: —that afterwards, on the 27th of April, 1802, Smith became a bankrupt, and Paine was appointed his assignee ; and that neither the said Smith nor the said Paine as his assignee ever paid the said sum, nor any part thereof; and although the said Paine, as one of the sureties, on the said 21st of December, paid one half of the sum due; yet he never paid the other half, but the plaintiff as surety as aforesaid, became obliged to pay and did pay it--The second count contains similar averments respecting another bond of the same date, payable on the 20th of February, 1803. — The plaintiff then avers that Paine had received from the estate and effects of the bankrupt divers sums of money, amounting in the whole to more than the two sums so paid by the plaintiff, and above whatever sums Paine had paid or would be obliged to pay on account of any bonds exe outed by Smith, or himself as surety for Smith, to the United States for the payment of duties: — By means of all which, and of the laws of the United States, the said Paine, assignee as aforesaid, became liable to pay, &c., of all, which he had notice; and in consideration of his liability as aforesaid, promised the plaintiff, &c.— The third count is on another bond to the United States for duties on merchandise imported by Smith, having been executed by him as principal, and by the plaintiff and one Francis J. Oliver as sureties, upon which last bond the plaintiff had been obliged to pay, and had paid the sum of 1919 dollars 25 cents. — Then follow averments similar to those in the preceding counts.
    The present defendant pleaded the general issue, viz. That his intestate Paine never promised, &c., and also in bar that the estate of the intestate being insolvent, and insufficient to pay all the debts which he owed at the time of his decease, commissioners were duly appointed to receive and examine the claims, &c., who reported the amount of the debts due from the estate to be 6998 dollars 7 cents ; — and that deducting the allowance made by the Judge of Probate * to the widow of the intestate, with the expenses of his last sickness and funeral, and taxes due from the estate, with the expenses of the administration, the balance of the estate in the hands of the administrator was only 1097 dollars 97 cents.
    To this plea in bar the plaintiff demurred generally, and the defendant joined in demurrer.
    The general issue being joined was tried at the last November term in this county, before Parker, J., who reported that, all the facts necessary to entitle the plaintiff to recover being proved, a verdict was taken for him, subject to the opinion of the Court upon the following questions.
    1. Whether the action was maintainable against Paine in his private capacity, it being proved that effects of Smith, the bankrupt, to a greater amount than the damages found by the jury, had come to his hands before the commencement of this suit.
    2. Whether the action survives against the administrator of said Paine.
    
    3. Whether the effects of said Paine, in the hands of his administrator,' are bound for the whole amount of the damages found by the jury, notwithstanding the insolvency of said Paine’s estate, the same being in fact insolvent.
    And if the Court should be of opinion, that the action will lie against said Paine, and that it survives against his administrator, judgment was to be entered on the verdict; and in such case, if the Court should be of opinion that the priority, given to sureties in custom-house bonds by the 65th section of the collection law of the United States, obliges the administrator to pay the whole amount of such judgment, execution to issue accordingly :—Otherwise the judgment to be filed with the commissioners on said Paine’s estate, that the plaintiff may be entitled to his dividend with the other creditors of said estate.
    Jackson, for the plaintiff,
    relied on the 65th section of the United. States’ collection law before referred to, which gives the priority to the United States in all cases of the insolvency * of persons indebted by bond for duties on merchandise imported, and extends that priority to sureties in such bonds, who upon the death or insolvency of the principal shall pay the money due; declaring that “ such surety, his or her executors, &c., shall have and enjoy the like advantage, priority or preference for the recovery and receipt of the said moneys out of the estate and effects of such insolvent or deceased principal, as are reserved and secured to the United States; and shall and may bring and maintain a suit or suits upon the said bond or bonds in law or equity, in his, her, or their own name or names, for the recovery of all moneys paid thereon.”
    The United States had a right of action against Paine, as assignee of their bankrupt debtor, as soon as effects of the bankrupt had come to his hands. That action must have been against Paine personally. The same action is given to the surety, who shall have paid the bond. The right of action thus vested survived against the administrator of the assignee, who in that capacity is the debtor of the plaintiff to the amount paid by him for Smith. But as the effects which have come to the administrator’s hands are not equal to that amount, the plaintiff must take what there is. This the law of the United States has given him ; and he is not Jierefore obliged, as a common creditor, to come in for his dividend under the commission.
    
      Bigelow, for the defendant,
    contended that the plaintiff’s action was misconceived, and that it ought to have been in debt, and not in case. The 65th section of the statute, which has been cited, gives to the surety “ a suit or suits upon the bond,” by which an action of debt must be intended. The action of Oliver vs. Smith and Paine his trustee  was debt by a surety on a custom-house bond. The plaintiff failed, because the court held that Mr. Paine, being the assignee, could not be charged in that process. as the trustee of Smith ; but they say the action should have been brought against Paine directly as principal defendant; and they suggest no objection to the action as in * debt, although they searched the record for objections not stirred by the counsel.
    The plaintiff’s right of action did not accrue until after all Smith’s effects had, by the assignment of the commissioners, become vested in Paine, and no act of the plaintiff’s, even though clothed with the preference given by the United States’ law, could overreach that assignment. 
    
    The action, however maintainable against the assignee, in his lifetime, does not survive against his administrator. The provision of the statute is in derogation of the principles of the common law, and ought to receive a strict construction. The administrator is not named in the statute. Nor can he in any sense represent the intestate, as he was assignee of the bankrupt, unless by taking administration he becomes himself assignee. Suppose debts and effects belonging to the bankrupt remain uncollected at the death of the assignee, can his administrator demand them ? Again, suppose the bankrupt seised of real estate, which the assignee had not converted into cash before his death, would such real estate go to the administrator, or would he have any power to dispose of it ? If not, he ought not to be liable for demands on his intestate in character of assignee. Many inconveniences would result from another construction. If this priority exists in respect to an administrator, it completely defeats the humane provisions of our laws, by which the expenses of the deceased’s last sickness, and funeral charges, are in any event to be paid; and the consequence may be that even the dead body of one thus situated would remain without Christian burial.
    An assignee of a bankrupt is himself quasi administrator; and on his death another assignee ought regularly to be created, on whom should devolve the rights as well as the duties attached to the office ; as on the death of an administrator, (and by our statute of an executor,) an administrator de bonis non is always appointed, to whom the settlement of the estate belongs.
    * Jackson, in reply.
    The action is in effect on the bond. The statute does not prescribe the form of the action. Every thing is averred in the declaration, which would be necessary to maintain the action, if it had been debt. But it is not easy to conceive the manner in which a declaration in debt on a bond could be framed, so as to suit the case of a joint obligor. The declaration in the case of Champnies vs. Lisle & Al. 
       was in assumpsit for a similar cause of action, and no objection to the form of the action was taken either by the court or at the bar.
    The 62d section of the bankrupt law of the United States declares that “ nothing contained in that law shall, in any manner affect the right of preference to prior satisfaction of debts due to the United States, as secured or provided by any law heretofore passed,” &c. This is a sufficient answer to the objection arising from the assignment of Smith’s effects being prior in point of time to the accruing of the plaintiff’s right of action.
    The claim of the United States, and consequently of the plaintiff, follows the property of Smith, into whatever hands it may have come. If the present defendant has it in possession, he is answerable. So would his administrator be also. The remedy against a second assignee, if one were appointed, would be cumulative. If nothing but real estate had remained in the hands of Paine, the defendant might well have pleaded no assets. As to the objection that physicians would be unpaid, and funerals cease to be celebrated if an administrator is held accountable, it may be answered, that money paid pursuant to law for such purposes would not be holden to-be assets ; for at the same time that in case of a conflict between the laws of the United States and those of an individual state, the latter must yield ; yet the laws of the United States have not undertaken to determine what is or is not assets in the hands of an administrator for the payment of public claims upon him.
    
      
       5 Mass. Rep. 183.
    
    
      
      
        Cooke's B. L 246. — Sir W. Jones, 202.
    
    
      
       1 Binney's Rep. 327.
    
   * By the Court.

Whether the defendant, in his capacity of administrator, would be answerable to a future assignee of the effects of the bankrupt, it is not now necessary to decide ; but we are all of. opinion that the present action does not survive, and cannot be maintained against the present defendant, as administrator of Mr. Paine, the assignee of Smith the bankrupt.

Verdict set aside.  