
    Kelsey, Administrator, &c., v. Smith, Administrator, &c.
    An administrator de bonis non can maintain an action for those articles only which remain unadministered.
    The amount of a note due or owing by an administrator to his intestate, upon a contract in the lifetime of the intestate, does not become so much money in the hands of the administrator under the statute, hut in the event that the same is inserted in the list of debts, which the administrator is bound to render, or in case he fail therein, upon complaint by some one interested in the estate, the court of probate, by the consent of parties, may decide that such note is due by the administrator; or upon a reference or an issue made up and tried in the circuit court, it may be so determined.
    By the common law it seems to he settled, that the appointment of a debtor to the office of executor, is an extinguishment of the debt; because the appointment is the act of the party to whom the debt is due. In the case of the appointment of a debtor administrator, the debt is not extinguished, hut the remedy for its recovery is suspended, there being no person who can be sued by the administrator; but when the relation of administrator ceases, the remedy to enforce the right is revived, and unless the right has been extinguished by some act in the course of administration, or unless something has been done to change the nature of the liability, a recovery may be had by an administrator de bonis non.
    
    By the principles of the common law, an administrator cannot be charged in the course of administration for the amount of a sum of money, claimed to be due by him to his intestate, unless by some act such as making an inventory of the amount due by him, or the like, he acknowledges the justness of the claim. Quaere. Would disbursements to the full amount of all the assets, and to the amount of the claim or debt against himself, by the administrator, amount to an acknowledgment?
    A failure by an administrator to make an inventory of the debts due by him to his intestate, may be a breach of duty for which he can be made liable on his administration bond; yet it does not result that the debts due by the administrator are extinguished, and the amount in his hands so much money, with which he is chargeable in the course of administration.
    PRESTWOOD SMITIi took out letters of administration in the probate court of Wilkinson county, upon the estate of Thomas Kelsey, deceased, but before a final settlement of his administration accounts, died intestate. The plaintiff in the court below, became administrator de bonis non of the said Thomas Kelsey, and the defendant became the administrator to the estate of Prestwood Smith. Smith, at the time when he became administrator of Kelsey, was indebted to the estate, in the sum of seven hundred and eighty-two dollars and fifty cents, besides interest, the amount of two promissory notes, made by him to Kelsey, in his lifetime; these notes came to his hands, as administrator, and remained in his possession until his death, when they came to the possession of the defendant, having never been returned by Prestwood Smith nor the defendant, as a part of Kelsey’s estate, in their settlement with the probate court of Wilkinson county; and they had not at the time when action was brought, been in any manner noticed or acted upon, either by the said Prestwood Smith, in his lifetime, or by his administrators since his death, in their representative capacity.
    To recover the amount of these notes, an action was commenced in the circuit court of Wilkinson county, by the plaintiff in error, administrator de bonis non of Kelsey, against the defendant as administrator of Prestwood Smith. The defendant filed a plea, setting forth the facts before recited, and claiming to hold the notes and resist the payment on the ground that they had been received by his intestate as administrator of Kelsey; that no settlement had yet been made of said estate, in the probate court; and that until such settlement, and for the purpose of making it, he, as administrator of Prestwood Smith, had the sole and unqualified right to such notes and their proceeds, as a part of the estate of the said Prestwood Smith, deceased.
    To this plea there was a demurrer by the plaintiff, which the court overruled, and gave judgment for the defendant. From this judgment an appeal was prosecuted. It is now assigned for error.
    1. Defendant’s plea does not show that the promissory notes therein mentioned or the amounts thereon due, were ever administered upon by defendant’s intestate.
    2. Said plea only shows a state of facts which would have prevented a recovery of said notes by plaintiff, if they had been administered by defendant’s intestate.
    
      3. Said plea does not show that said promissory notes were ever returned by defendant’s intestate, in his inventory.
    4. Said plea admits the several amounts mentioned in said promissory notes to be still due, and assets of the estate of the plaintiff’s intestate, and does not show either a payment of said notes, or administration of these by the defendant or his intestate.
    Boyd, for appellant.
    Several questions arise in this case.
    1. The effect of appointing a debtor an administrator of an estate under the peculiar jurisprudence of our state.
    
      2. When do the credits of the estate become assets in the hands of an administrator?
    3. When are such assets considered to be administered?
    It was formerly considered that, if a creditor appointed a debtor his executor, the debt itself was forever released and extinguished. Toller on Executors, 348.
    The better opinion seems to be, that such appointment merely discharges the action for the debt. 11 Mass. Rep. 66, 128; 2 Cowen’s Reports, 807,808. “ The legal remedy is destroyed in such case by the act of the party, and is therefore forever gone,” but the effect is different where it is suspended merely by the act of the law: hence the appointment of a debtor to be administrator of the estate of his creditor, was always held to be only a temporary privation of the remedy. Toller, 349. Our statutes provide that the naming an executor in a will, or the appointment of an administrator by the orphans’ court, shall not extinguish any debt due to the testator or intestate of such executor or administrator. Revised Code, p. 53, s. 88, 89.
    The same sections provide, that if an administrator shall not return a debt due from himself in his inventory, any party may petition the orphans’ court, and there commence a compulsory cause to force him to make his return of such debts. When the return is made voluntarily, or established by the proceedings directed in the act, then the administrator is to account for the amount, so ascertained, as so much money; and if he do not so account, his bond may be put in suit. See sections last cited.
    
      The remedy here given is evidently cumulative: not cumulative in favor of the administrator de bonis non, for he never comes into existence until it is too late to proceed according to the terms of the statute, by citation or petition against the first administrator; but it is cumulative, or added to the remedy, which, as we shell show by authority, existed previous to the statute in favor of the administrator de bonis non, and is not taken away nor affected by its terms. It is a new and independent process, prescribed-for the benefit “ of any persons interested in the administration.” If no person interested chooses to proceed according to 'the enactment of the section referred to, in the lifetime of the original administrator, the claim against him, in case of his death, stands in the same situation, as if no such positive legislation had been made.
    I conclude, then, that under the laws of Mississippi, the bare appointment of a debtor to be administrator of his intestate, does not in any way affect or alter the debt. Our statute prevents its extinguishment, and provides a remedy by which the administrator may be compelled to unite it with the remaining assets of the estate; until that time the debt remains as if he had not been appointed, and in case of his death before he has voluntarily returned it in his inventory, or been compelled to do so, it stands as if he had never administered, as to that debt which he never has administered.
    2. The credits of an estate do not become assets till they come to the hands of the administrator. Toller, 157, 162; 2 Cowen’s Reports, 808; 4 Mass. Rep. 612, 613, and cases cited.
    3. Such assets are not to be considered as administered till the administrator has done some act to change or alter them. The recovery of a judgment seems not to have been a sufficient act of administration to deprive the administrator de bonis non of his action for the same debt. ' Toller, 448; 4 Mass. Rep. 612, 613. Assets are riot administered, so as to be exempt from the claim of an administrator de bonis non. “ So long as they belong to the estate” he represents, and until some act has been done by the first administrator, to fix a right of action, as against himself and his securities, indeed the right of the administrator de bonis non can never be said to be barred, until the right of the distributees, legatees, and others interested in the administration of the estate, is fixed by some act of the administrator. 9 Cowen, 329; 8 Cowen, 344, 345; Bacon’s Abridgment; Executor and Administrator, B. Q., 2.
    These principles are deemed sufficient to reverse the decision of the court below, on the demurrer to the defendant’s plea.
    An administrator de bonis non is entitled to all the goods and personal estate, or in the language of his bond, “ to all the goods, chattels, and credits of the deceased,” not already administered. Revised Code, p. 43, 45, s. 56, 59. This is also the general principle of law. Toller, 117, 243; Bacon’s Abridgment, as above.
    The whole inquiry, then, comes to this: “Were the notes declared on or their proceeds, a part of the goods, chattels, or credits” of Thomas Kelsey, left unadministered by Prestwood Smith?
    They were certainly the credits of that estate, and by the provisions (already cited) of our statute, would have become assets in the hands of Prestwood Smith, so soon as he returned them in his administration account, or was compelled by adversary process to liquidate or allow them.
    There are numerous decisions, which seem to countenance the idea, that the amounts due on the notes were rendered assets by the mere appointment of the debtor to the administration; but it is only when there is a deficiency of assets, or where the debt has been released, or where it has been acknowledged by the administrator, that it becomes assets; this is the rule on general principles, without reference to our statute. 2 Cowen, 808; 11 Mass. Rep. 263, 266.
    The rule in the present case would not be altered by admitting , that the mere appointment of the debtor, &c., would render him and his securities liable, on his administration bond, for the amount of these notes, as so much money; if he should still neglect, as in the case before the court, to administer that money, or in any way to alter, change, or pay it, immediately on his death any person taking out letters de bonis non, would necessarily have the right to maintain this action for the same sum. The two remedies in favor of two different parties, arising at different times, and being for different purposes, are not inconsistent. The creditors or next of kin, during the lifetime of the first administrator, might thus claim whatever damaggs they could substantiate, by reason of his not administering the assets, which, by operation of the law, had come to his hands, while, after his decease, the administrator de bonis non would, with manifest propriety, call on his personal representatives for so much money still due to the first intestate. 11 Mass. Rep. 370, 371.
    The authority from Massachusetts is clear to show, what facts stated in a plea, like that of the defendant’s in this case, will be considered a good bar. Judge Jackson, in delivering the opinion of the court, places his decision on the ground, that the return of the debts claimed, by an administrator, in his account having fixed his liability, and that of his security, would necessarily bar all further proceedings, but during the lifetime of such administrator only. 11 Mass. Rep. 370, 371.
    He says, (page 366,) “The case might have been very different if the defendant had denied that he owed the debt, and had refused to insert it in his inventory,” &c. . Also, (page 369,) he adds, “that as soon as the debtorfis appointed administrator, if he acknowledge the debt, he has'actually received as much and is answerable for it.”
    Thus the mere appointment of a debtor to be administrator of his intestate, if thei;e be no deficiency of assets, or no release of the debt, or no acknowledgment, will not make the debt assets; but even if such an appointment rendered the debt assets, yet it is submitted, that as this is the act of the law, and not of the administrator, until some administration of such assets, they would pass, on the death of an administrator, necessarily to the administrator de bonis non, and not to the administrator of the first administrator. Until then, they are assets not administered. This is certainly so by our statutes also. The express case is put in ’ Toller’s Law of Executors, 349; thus he says, “ if the obligor of a bond administer to the obligee and die, a creditor of the obligee having obtained administration de bonis non, may maintain an action for such debt against the executor of the obligee;” and the same rule is recognised in the case next cited, on the same page. The same case is expressly decided in 1 Siderfin, and in Keble, as cited in 11 Mass. Rep. 267.
    Under our statute, the rule is of even stronger and clearer application; for the very words of it, as before, cited, show that a debt in the situation described, does not even become assets, and a forfeiture is not administered on, until it is either voluntarily returned by the administrator to the probate court, or else liquidated and established by the process there pointed out. Then, and not till then, is the administrator to account for it as money in his hands, and he and his securities are so, instanter, liable on his bond. Revised Code, p. 53, s. 88,89. Several considerations will show the propriety of permitting a recovery in favor of the plaintiff in this case. If the notes claimed by the defendant are permitted to remain in his hands, he cannot administer upon them. He is only empowered to administer the estate of Prest-wood Smith. It is true, he is entitled to present the acts of Prestwood Smith’s administration, &c., on Kelsey’s estate, for allowance to the orphans’ court, because he is entitled to his commission, and liable for his defaults. But he cannot add to that account, nor detract from it; he can introduce no new item; but must claim of the court to examine and allow, what Prest-wood Smith has done; and not what he (the defendant) may propose to do, in relation to Kelsey’s estate. No act of his can come into the account. 2 Greenleaf’s Reports, 81.
    Again, the plea of the defendant is defective in this. It does not show that, if these notes are returned by Prestwood Smith’s administrator, there will be any deficiency of assets, on the face of his administration account. It is only, as we have seen, in the event of such deficiency that the debt will become assets. Let it be, that on presenting Prestwood Smith’s administration account up to the time of his death, it should appear that independent of these notes, he (Prestwood Smith) had received assets of Kelsey’s estate to a greater amount than he had paid out; what, then, in the doctrine of the defendant, becomes of these notes? Prestwood Smith’s administrator cannot sue on them, because he is the party liable on them, and if the administrator de bonis non of Kelsey cannot maintain this action, it is gone forever and entirely.
    
      The plea having admitted the debt originally due, and that Prestwood Smith died without paying it, either actually or by implication of law, his administrator must be liable, in the same way as any ordinary administrator. Nothing short of a payment can discharge him. 11 Mass. Rep. 271.
    This will be more evident if we suppose some third person other than Prestwood Smith had taken out letters of administration on Kelsey’s estate: the present action, on the death of such administrator, would clearly lie, until absolute payment of the notes. A recovery and judgment by the first administrator would not extinguish the right of action. Toller, 44S.
    Another view suggests itself to my mind, which tends to strengthen the opinion above noticed. The defendant, judging him by the words of his plea, cannot now pay these notes to any one but the plaintiff. Having alleged no deficiency of assets in Kelsey’s estate, which at common law would make this debt assets, it may be here admitted; and having shown no act by his intestate which can bring him under the provisions of the 88th and 89th sections of the orphans’ court act, whether he returns these now or not this action must lie. On his own showing, trover by the present plaintiff for the notes might well be maintained, and the present action, with notice to produce the notes, answers the double purpose of a full recovery at once. Nor is it any objection to these views, that the suit now before the court, if allowed to progress, will draw the administrator of Prestwood Smith from his proper form, to wit: the probate court, to settle his intestate’s accounts.
    The statute enabled Prestwood Smith to settle these claims in his lifetime, by returning them in his account of administration, and paying out their amount to the creditors of Kelsey. He neglected to take advantage of that mode of payment, and to the day of his death, retained the notes which he had acquired as administrator, without exhibiting any intention of accounting for them, in any way, to the estate he represented. His administrator still holds them in the same manner unaccounted for, and the statute gives no remedy to compel him to return them to the orphans’ court, as it did against his intestate in favor of “any person interested.” He founds his claim on the neglect and default of his intestate, and carries it still farther than he could have done if he had been removed by the court, and not by death.
    He denies his accountability altogether to the administrator de bonis non. Such a position is believed to be contrary to reason and well established law.
    The intestate of defendant having neglected to avail himself of one method of settling these claims, his administrator must abide by his choice, and be content to administer his own proper estate as he finds it.
    It was Prestwood Smith’s duty to have collected and administered the assets of Kelsey’s estate. So far as these notes are concerned, he has done neither, and his administrator cannot now claim a delay to do it for him. If Prestwood Smith had been removed from his administration by an act of the court, can there be a doubt that he in his lifetime, and the defendant since his death, would have been liable in this action? The case is not altered by his death before he settled his administration account. In short it seems clear on reason and authority, that a plea of this kind, to be good, must state some act of the first administrator, voluntary or compulsory, by which his debts were made assets, and the further act by which it may be considered as administered on, so as to defeat the claim of the administrator de bonis non. The most liberal construction of what amounts to an administration, would be that which allows the assets to be administered, when by striking a balance of an administration account, and including the debt in question as money, there should appear debts paid equal to, or greater than the credits. -
    If the debts paid fall short, in the same proportion are the assets, which are composed of notes like these sued on, still unadminis-tered, though they may be inventoried; and the administrator de bonis non must still be the proper person to collect them.
    The plea, then, is fatally defective: the notes sued on, or their proceeds, are still credits of the estate of Kelsey, and not yet administered by Prestwood Smith, -and must go of course to Kelsey’s administrator de bonis non. If the court should come to the same conclusion, they will be compelled to reverse the decision below, and give judgment for the plaintiff on demurrer, and, awarding a respondeat ouster, remit the case for further proceedings.
    Henderson, contra.
    
    The plea is sufficient and has met the merits and justice of the case, because by the common law, when administration was committed to a debtor of the intestate, it did not, as in case of an executor, extinguish and release the debt, but operated as a total suspension of remedy. See 3 Bacon’s Abridgment, tit. Executors, to p. 11, to obviate which, our statute, Revised Code, s. 88, 9, p. 53, was enacted. This statute gives a remedy; none existed at common law. It is therefore not cumulative, but supersedes the common law restriction, and presents a substitution. A statute giving a remedy, when none existed at common law, must be pursued. See I. R. 175; 6 Bacon’s Abridgment, p. 383; 1 Cowen’s Rep. 741.
    Besides the fact that this statute gives a remedy against executors and administrators when none existed at common law, it also contains in its language sufficient to exclude any other remedy or jurisdiction than is there pointed out.
    It is made the duty of executor or administrator to give in claims against himself; and if he fail, the remedy is not by original suit in the circuit court to correct omissions in the probate court; but any one interested may make known the administrator’s delinquency, to the orphans’ court, which court, if the parties consent, may decide the matter; or the parties, by approbation of the court, may refer the controversy; or either party may demand an issue to the circuit court, and the special jurisdiction of the circuit court, is then expressly appointed, and the circuit court, we insist, can obtain cognizance of such a case in no other way. See 5 J. R. 174.
    If the claim shall have been reported by the executor or administrator, or if it shall have been established, as appointed by this statute, then the administrator is to account for it in the orphans’ court as if it were so much money in his hands, and on failure, his bond may be put in suit. The statute law then has specified, that a claim thus situated shall be reported or ascertained in a particular way when the common law gave no remedy, and when so reported or ascertained, the law has adjudged it an administration of the claim to be accounted for as money.
    Our plea, then, admits the original validity of this claim, and admits that it is good in the hands of the defendant to be accounted for as money, in settlement of the administration intestate on Kelsey’s estate; our plea, then, sets forth and admits the whole liability which this statute would affix in such a case, which certainly must make it a complete bar.
    That our plea, then, does not aver an inventory is no defect. It avers the holding as administrator, and to be accounted for in settlement, when made, as money. The statute respecting an inventory, is but formal and directory, and not generally observed, and if the estate be accounted for without inventory, the object of the law is answered; but a complete answer to this objection is, that if an inventory was necessary to a correct administration, yet the statute pointed out how this decision should be corrected; and the irregularity does not surely work a forfeiture of the jurisdiction of the orphans’ court, and the idea is equally absurd that it operated to confer it on the circuit court in express disregard of the statute in such a case. If an inventory has any thing to do with this case, the plaintiff should have averred it in his declaration, or that we had rendered an inventory or list of debts and omitted this claim. 15 Eng. Com. Law Rep. 174; 16 Mass. Rep. ISO.
    Our plea is a good bar, because it asserts the facts admitted by the demurrer. That the plaintiff has not the possession of the note declared on; but possession is with defendant in autre droit. Now, though a payee or indorsee may sue the maker or other party liable on a note, possession of which is with the defendant, yet this principle of proof and pleading certainly cannot apply, only when possession and liability are fixed on the same individual. The rule of law is, that a man shall not take advantage of his own wrong, and would not be heard to object to the non-production of note by plaintiff, when defendant withheld and prevented that production. But this rule cannot apply to one who holds in autre droit.
    
    Take the present case. An administrator (as defended) cannot, in that capacity, wrongfully withhold this note, because if he withhold it wrongfully, it is a personal act, incurring personal liability, and in no sense official or administrative. This attempt is as if A were to sue B, on a promissory note, and offer proof of a note in C’s possession. Now in such case we know defendant could object to the non-production of the note, nor could plaintiff recover with such proof. Therefore, if plaintiff has any action, it must be for the note specifically, as for trover, &c, 1 Leigh’s Rep. 16, (cited 13 A. G. 219;) 2- Gill & John. 326, (15 A. J. 123.) Another reason which establishes the sufficiency of the plea, is that the plaintiff is suing as administrator de bonis non, and must of course treat this as a chose in action left unadministered by the former administrator, and which has, or should come to his hands for administration. Now that it has not so come to his hands, is admitted by the demurrer, and his duty to report this or other previously unadministered claims, in an inventory to the probate court, proves that he should actually possess himself of the claim specifically. Revised Code, p. 45, s. 59; p. 50, s. 73.
    If, therefore, plaintiff hath any right of action for this note, it must be in trover, or detinue against C. P. Smith, for wrongfully withholding these notes, but I am satisfied that no such right of action exists to the plaintiff in any form. The proceeds of these notes must be accounted for in the settlement of Prestwood Smith’s administration of Kelsey’s estate, and if any balance is found due the estate of Kelsey, Smith’s estate is liable therefor.
    I suppose the law is well settled, that for wasting and converting assets by the first administrator, an administrator de bonis non, has no title to sue at law or equity, the remedy being only by creditors or heirs, &c. 2 Penns. Rep. 482, (17 A. J. 162, s. 13, 14,)
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

The merits of the defendant’s plea in this case, present the only subject for investigation. The demurrer admits the plea, ■and if the facts stated are a good bar to the action, the circuit court decided correctly in overruling it. The plea states that the defendant’s intestate, Prestwood Smith, in his lifetime and at the time of his death was administrator of the goods and chattels of Thomas Kelsey, deceased, and that the notes on which the suit is brought, came to the hands of Prestwood Smith, as administrator, as part of the effects of Kelsey, and so remained until Smith’s death. That they then came into the possession of the defendant, as administrator to Prestwood Smith, where they still remain, and that no complete settlement of the administration of said Smith, on the estate of Kelsey, has ever been made. It is contended that the facts set forth, show that the notes were assets in the hands of the first administrator by operation of law, and that, therefore, the administrator de bonis non, has no right to recover, the. amount being considered as so much money actually received by the first administrator.

It is certainly true, that the administrator de bonis non has no right to recover for any thing which has- been duly administered; his right of recovery extends merely to such articles as may remain unadministered. If, therefore, these debts, by the mere possession of the notes, were converted by law into assets or money, in the hands of the administrator, the present plaintiff had no right to recover.

This question seems to me to be relieved from, the embarrassment growing out of the application of the principles of the common law, by the intervention of our statute. The 88th section in Revised Code, 53, provided that it shall be the duty of an executor to give in claims against himself in the list of debts which he is bound to render, and in case he fail to do so, any person interested may compel him, by petition to the orphans’ court, and the court by consent of parties may decide on the same, or it may be referred, or determined by an issue to he tried in the circuit court, and a certificate from such court shall be admitted to destroy or establish the claim, “ and if the executor shall give in such claim, or the same, or any part be established, as aforesaid, he shall account for the sum due in the same manner as if it were so much money in his hands, and on failure, his bond may be put in suit.” It may be remarked on the latter part of this section, that, after the fact is established by one of the modes required, if the executor fail to account for the debt as so much money, his bond may be put in suit, in consequence of such failure to account; no right of action is given by this section for a failure to give in the claim, unless it arises from a breach of duty required.

One of two things is required to be done, before the debt can be considered as so much money in the hands of the executor, first, that he should give in the claim against himself in the list of debts due the deceased; or, secondly, in case he fail to do that, it must be found against him by the orphans’ court, by referees, or by an issue in the circuit court, neither of which appears to have been done. The 89th section extends the foregoing provisions to administrators. If Prestwood Smith had given in these claims in his inventory of debts, then he would have fulfilled the letter of the law, and by that very act the debt would have been as money on his hands, or if a petition had been filed and a proper finding had taken place against him, then it would have been as so much money.

By the provisions of this statute, Prestwood Smith, at any time during his administration, had a right to controvert these claims and show that the notes were without consideration, and not binding. Let us change the case and suppose that this suit had been instituted, as the defendant says it should have been, by a creditor or legatee, and, according to the doctrine contended for, the bare possession of the notes by Prestwood Smith, would make him liable; because by operation of law, they become as so much money, notwithstanding they may have been given without consideration, or the consideration had failed,

I do not think that a debtor should be placed in a worse situation, by becoming administrator to his creditor. The statute does not make the administrator accountable, until the justice of the claim shall have been established, either by his own confession entered in the inventory, which is to become a part of the records, or by a proper and legal determination against him by a jury, if he chose, for this must be what the statute means in making provision for the determination of the court, or for a reference, or an issue. It cannot mean that the fact of whether such claim has come to the hands of the administrator shall be so determined. These notes, then, certainly did not become as so much money, by the provisions of this statute, nor do I think in strictness they became so in common law. The statute is an enlarging or cumulative statute, in some of its provisions, and I think, independently of it, under the particular circumstances in this case, we could not consider the notes in question as money. >

By the common law, it seems to have been settled that the appointment of a debtor executor, was an extinguishment of the debt, unless there were creditors or legatees unsatisfied, without the application of it for their benefit; in the case of administration it has never been held that it was an extinguishment of the debt, but only a suspension of the action, for a very obvious reason, that the administrator could not sue himself. It is also said to be an universal rule that when the remedy is suspended by the act of the party entitled to it, it is gone forever. 2 Co wen, 807. And, although the remedy is evidently suspended in the case of an administrator, yet it is not by the party entitled to it, but by the appointment' of the ordinary, the manifest reason of the suspension being that there is no one to enforce it, or rather that the person legally entitled to enforce it, is the one against whom it is to be enforced. This being the reason, it seems to me, that the rule can only apply while the reason prevails, unless in the meantime something has been done to change the nature of the liability.

The principles which prevail in the decision of this question will all be found, as well as many authorities referred to in the case of Stevens’s administrators against Gaylord, 11 Mass. Rep. 256. It is said in that case, “as soon as the debtor is appointed administrator, if he acknowledge the debt, he has actually received so much money and is answerable for it.” This shows that there must be an acknowledgment on the part of the administrator, and this acknowledgment I take to be material in order to change the demand. The case in Salkeld, 306, is in support of this position. The case of Stevens v. Gaylord, was instituted in Massachusetts, by the administrator of Tibbals, against Gaylord, who was administrator of Tibbals, in Connecticut, founded on a note. Gaylord’s plea was very similar to this, except that it went farther in stating that he had inventoried the debt, sought to be recovered in Connecticut, and was then liable for it. This was considered a material matter, inasmuch as it created a liability in Connecticut, and was in the. due course of administration. Judge Jackson, in relation to that part of the plea, says, “ It is material here to recollect;, that the debt now demanded is included and specified in the inventory exhibited by the administrators in Connecticut, as part of the goods and estate of the intestate, for which the administrators were accountable to the judge of probate there. In this particular, and in this mainly, I think the analogy between the present case and Stevens v. Gaylord fails. If Smith had returned these notes in his inventory, there could have been no doubt, or if he had even acknowledged them, it would have given plausibility to the defence. In continuation of his remarks, the judge says, “the case might have been very different if the defendant had denied that he owed the debt, and had refused to insert it in the inventory, and to account for it as the property of the deceased.”

It is true that we have no evidence of Smith’s refusal to insert these claims, or to account for them, except a neglect to do so in violation of the injunction of the law, which certainly approaches nearer to a refusal or denial than to an admission, and indeed I think may, with great propriety, be considered equivalent to a refusal, inasmuch as he was the only person to whom the denial or admission of the debt could be made. It would, therefore, be absurd to say that he did deny the justice to himself, or that he so admitted it. The law has pointed out what shall amount to an admission to charge him; his neglect, if it has any effect, must operate as a denial, and would properly bring the case within the distinction laid down in the authority. If Smith had disbursed funds to the full amount of all moneys recorded enclosing these debts, that might change the aspect of this case, but no such thing is stated in the plea. In the case so often referred to, the court seems to have founded the opinion mainly on the ground that the defendant had rendered himself liable in Connecticut, and inasmuch as that liability was binding upon him, he could not be charged in Massachusetts. This liability arose by the act of returning the claims in the inventory, and was not a liability incidentally arising out of undue administration. If there be any liability in this case, it must be in- consequence of mal-administration, and not on the particular claims in question.

The decision of the court, in Winship v. Bass et al., 12 Mass. Rep. 199, seems also to be clear on this subject. Chief Justice Parker says, that “ there is no pretence that a debtor, by taking out letters of administration upon his deceased creditor’s estate, can discharge himself of his debt. The remedy at law against him may be suspended during his administration, but it will revive after that ceases.” If this position be correct the defendant must be liable on these claims, the administration of his intestate having ceased, and the rule as laid down is peculiarly applicable to the facts of this case. If it was only a suspension and can revive, it must follow that the revival can only take place on the original claim. To make the administrator liable on his bond, would not be a revival of the claim, but would arise in consequence of a total change in the character of the demand. A revival can mean nothing more than giving energy and efficacy to that which was dormant; and if it be materially changed by the act which produced the suspension of its being, it is not a revival. If, by the act of administration, the debts due by the administrator to the intestate were actually changed into money, and the right of action on the promissory notes merged into a remedy on the bond for mal-administration, no revival of such debt could take place, and we must, therefore, suppose that the learned judge had used language unmeaning as well as untechnical; but I think his remark, will be found to contain the true principle.

A material difference is made in the authorities, between an extinguishment and a suspension, according to the common law doctrine on this subject, and this 'will be found to be the only difference between an executor and an administrator, a suspension being considered a temporary privation of the remedy, while an extinguishment is a total destruction of it. One arises by act of the party, and the other by operation of law; from the necessity of the case. Toller, in his Law of Executors, 348, makes this distinction, and refers to the case of Lockier v. Smith, 1 Siderfin, 79, in support of it, which is directly in point. It is this: “If the obligor of a bond, administer to the obligee and die, a creditor of the obligee, having obtained administration de bonis non, may maintain an action for such debt against the executor of the obligor.” I have not been able to get the book referred to, but the principle decided is extracted in numerous cases, and acknowledged to be law. If so, it is decisive on this question. Toller acknowledges it as law, and from it draws the distinction above mentioned.

That administration de bonis non was obtained by a creditor of the obligee can make no difference, since it was not by virtue of that credit that he was enabled to sustain the action, but in his character of an administrator de bonis non.

The averment in the plea, that a final settlement of the administration account of Prestwood Smith on the estate of Kelsey had not been made, cannot vary this case. The defendant, as administrator of Smith, has no right to extend any such account beyond the actual administration of Prestwood Smith, by adding to it items which were not administered by Smith in his lifetime; and even if he had, he has not done so by placing these claims on such account or inventory, and therefore cannot claim any benefit by it. The administration must stand, so far as the liability of Smith is concerned, as it was at his death; and whatever was not administered must vest in the plaintiff as administrator de bonis non. Nor does it make any difference in whose possession the notes may be.

In regard to some of the points made by defendant’s counsel, I think they may be easily answered. That the plea states that the notes are in defendant’s possession in autre droit, and that if it be wrongfully Avithheld it creates personal responsibility. If the action were for the notes, the law referred to might apply; but it is for the amount, for the payment of which the administrator is liable in that capacity. Again, that the plaintiff cannot sustain the action, because as administrator de bonis non he can only control what was left unadministered; and the demurrer admits that the notes are in possession of defendant. The notes are but the evidences of the debt. The debt itself, being unadministered, vests in the plaintiff, and it is immaterial in whose hands the notes may happen to be; it does not affect the debt. It is also urged that when Prestwood Smith failed to make inventory of these debts, he became liable on his bond. That may be true, and yet he may be liable on the notes. I think I have shown that the debt was not extinguished by any act of his. Suppose he bad failed to make an inventory of other debts as the law directs, would such failure have worked an extinguishment of such debts? Could not the administrator de bonis non recover against a third person on a note left uncollected by Prestwood Smith? If not, there can never be any need of an administrator de bonis non; for, according to this position, if he fail to make an inventory, the very act makes him liable on his bond to the extent of the failure, whether of personal property or debts, for the duties required are the same in relation to both. On the other hand, if he do make an inventory, it is an administration, and the administrator de bonis non can have nothing to do with it. I shall not pretend to controvert the liability on the bond arising from failure of duty, but I do not think that any such failure must necessarily operate as an extinguishment of debts by converting into money in the hands of the administrator.

I think the facts stated in the plea do not form a good bar to the action, and that the demurrer to the plea should have been sustained.

The judgment must be reversed; and, as the judgment below should have been respondeos ouster, so it must be here.

Note. — Smith, J., being interested, did not sit in the case.  