
    
      Daughtry by Guardian v. Haynes's Executors.
    
    This was an action, on the case, brought under the act of 1793, which gives a remedy, by debt or case, to any person injured by the neglect, or misconduct in office, of any Clerk of the Superior or County Court, &c. Upon the trial of the cause in the Superior Court, the following facts were established by evidence, and the case was transmitted here with leave to plaintiff to enter a non-suit, if this Court should think the action not maintainable; otherwise, judgment to be entered for the plaintiff.
    James Daughtry, father of the plaintiff, died intestate, after which the defendant’s testator as Clerk of Northampton County Court, issued a paper, purporting that one Joseph Daughtry was appointed administrator to James. No administration bond, however, was executed by Joseph; but he sold the personal estate of James, to one-seventh part of which the plaintiff is entitled, which with interest she claimed from the defendant. Except the letters of administration abovementioned, there was no evidence that Joseph was appointed administrator: no suit has been instituted against him by the plaintiff or any distributee, and the present suit was not commenced until after the death of the defendant’s testator. The whole of Joseph Daughtry’s property had been sold under execution.
   Seawell, J.

delivered the opinion of the Court.

It is unnecessary to examine whether the defendants are at all liable under the circumstances of this case; for we are all of opinion the present plaintiffs have no right to recover.

To maintain every action, it is essential that the plaintiff should have the legal right to the thing demanded. Upon the death of an individual intestate, his personal estate belongs to no one, till administration is granted. When granted the title has relation back to the intestate’s death.

The administrator is the only legal owner; and he is in law accountable to no one but the creditor. The claim of the next of kin is from and through the administrator. This is an attempt to claim above him.

Whatever injury the estate of the intestate may have sustained; yet in point of law, none can be considered as entitled to satisfaction but the legal owners. If the law were otherwise, it would place it in the power of the next of kin, without security, and possibly insolvent, to obtain possession by suit at law, of the whole personal estate of the intestate.

The plaintiffs, therefore, having no right in law, we are of opinion there should be judgment for defendants.  