#### *Cheatham Adm’r v. Burfoot. Same v. Buck Adm’r of Friend. Same v. Friend Adm’r of Friend.

December, 1838,

Richmond.

Olebe Land — Sale of — Rights of Freeholders in Proceeds —Case at Bar. — The glebe land In a parish having been sold by the overseers of the poor, under the provisions of the act, 1 Rev. Code, ch. 32 b, the proceeds of sale are paid over, by direction of the freeholders and housekeepers of the parish, to an agent by them appointed to invest the same in bank stock. The agent makes the investment, receives the dividends on the stock during his life, and dies without having accounted for such divi - dends. Then a bill is exhibited against his administrator, by one of the freeholders and housekeepers of the parish, suing as well for himself as on behalf of the others (of whom he states that he is the duly, appointed agent), setting forth the above facts, and praying that the defendant may be decreed to pay to the plaintiff the amount of dividends received by the decedent in his lifetime. On demurrer to the bill, Held, the freeholders and housekeepers acquired no property in the proceeds of the glebe land, by the disposition thereof made as aforesaid, and this suit cannot be maintained.

Administrator d. b. n. — Suit by — Devastavit *of*Predecessor.* — An administrator de bonis non canmain- ■ tain no suit for the recovery of assets converted by his predecessor in the administration.

Same — Same—Same—Revival.—If such suit be instituted by the administrator de bonis non against the representatives of his predecesssor, a party who is sole legatee of the original decedent, and has also qualified as the successor administrator de bonis non, cannot revive and prosecute the suit, either in the character of a legatee, or in that of personal representative.

In October 1817, a bill was exhibited in the late superiour court of chancery for the Richmond district, by Dawson Burfoot, “ one of the freeholders and housekeepers within the Manchester parish in the county of Chesterfield, who sues as well for himself as for and on behalf of the other freeholders and housekeepers within the said parish,” against Branch Cheatham and Peter *F. Edwards administrators with the will annexed of Matthew Cheat-ham deceased. The bill stated, that sometime in the year-, the glebe land in the said parish being vacant, the overseers of the poor for the said county then in office, by virtue of the act of assembly passed the 12th of January 1802, entitled “an act concerning the glebe lands and churches within this commonwealth,”* sold the same in the manner prescribed by the said act, and collected the money arising therefrom. That by the direction of the freeholders and housekeepers within the said parish, or a majority of them, the overseers of the poor for the said county paid the said money over to the said Matthew Cheatham, whom the freeholders and housekeepers of the said parish, or a majority of them, had appointed their agent to vest the said money in bank stock. That the said Matthew accordingly, some time in the year -, purchased 40 shares in the stock of the bank of Virginia, and afterwards, in the year-, purchased two other shares in the stock of .the same bank. That the said Matthew, from July 1806 to January 1808, both inclusive, drew from the said bank the dividends on 40 shares, and from July 1808 to January 1815, both inclusive, drew from the said bank the dividends on 42 shares, the whole of which dividends so received by the said Matthew amounted to 3507. dollars 55 cents. That the said Matthew had never in any manner accounted for the said dividends to the freeholders and housekeepers of the said parish. That the complainant was advised that the said Matthew, as agent for the freeholders and housekeepers of the said parish, was in duty bound to have vested the dividends drawn by him from the said bank, in additional bank stock, as soon as convenient after they were received, and that the defendants were bound to account for the said dividends *received by their testator, with interest thereon equivalent to what would have been the dividends on the shares that might have been purchased with the said 3507 dollars 55 cents ; but the said defendants, although.often applied to by the complainant, in his own right and as agent duly appointed by and on behalf of the other freeholders and housekeepers of the said parish, or a majority of them, had refused to pay the same, even with six per centum interest thereon. That no debt or demand existed against the said parish, and that there was no *207just objection to the payment of the said sum with interest, to the complainant, for himself and the other freeholders and housekeepers of the said parish. Wherefore the bill prayed that the defendants, administrators as aforesaid, should be decreed to pay the complainant, for and on account of the freeholders and housekeepers of the said parish, the said sum of 3507 dollars 55 cents, with such a rate of interest as might be deemed equitable.

The defendants put in a demurrer and answer to the bill. For cause of demurrer they shewed, that, the bill was exhibited by the complainant alone, praying for the payment of the whole sum alleged therein to be due to the freeholders and housekeepers of the said parish, on behalf of himself and the said freeholders and housekeepers, without naming the said freeholders and housekeepers, or a majority of them, or shewing any authority under their hands, or by any law of the land, to institute a suit on their behalf as aforesaid : and further, that there was not any matter set forth in the said bill, as a foundation of equity for the court to interpose, but what was properly cognizable at law, and whereof the said complainant might have the benefit upon a trial at law, if the same were true. They then proceeded to answer the bill, claiming a credit for 1635 dollars paid by their testator in his lifetime at the request of the freeholders and housekeepers, and’ contesting *the demand of interest on the dividends received.

The court overruled the demurrer. By an account taken in the cause, and approved by the court, it appeared that after allowing the credit claimed as aforesaid by the defendants, the balance of the dividends received and unaccounted for by their testator amounted, on the 1st of January 1820, to 3237 dollars 21 cents, principal and interest.

In the same month of October 1817, a bill was exhibited in the same superiour court of chancery, against the same defendants, by Cornelius Buck sheriff of Chesterfield, administrator de bonis non with the will annexed of Edward Friend deceased. The bill set forth the will of Edward Friend, whereby he devised and bequeathed his whole estate, real and personal, to Edward O. Friend the son of his brother Joseph, and authorized and directed his executor to sell a plantation called Hannah Spring. Matthew Cheatham was named the executor. The bill alleged that the said Matthew, having renounced the executorship, qualified as administrator with the will annexed, took possession of the whole estate, real and personal, which was large, and received the whole profits thereof until his death ; that he sold the plantation called Hannah Spring, for a large sum of money, the whole of which was paid to him in his lifetime ; and that he died without ever having settled the accounts of his administration. That upon his death, administration of the estate of the testator remaining unadministered, with the will annexed, was duly committed to the plaintiff. That Edward O. Friend, the devisee and legatee mentioned in the will, was yet an infant under the age of 21 years. The bill prayed that the defendants, administrators with the will annexed of the said Matthew Cheatham, might be compelled to settle the accounts of their testator’s administration on the estate of Edward Friend, and decreed to *pay the plaintiff any balance that might be found due from the estate of the said Matthew to the plaintiff administrator as aforesaid.

The defendants answered, that when they came into possession of their testator’s papers, they found them in great confusion and disorder; that they had been unable to discover any book or paper containin g an account of his transactions with the estate of Edward Friend deceased, or any thing relating thereto, except some bonds or notes appearing to be due the same, and scrip for shares of bank stock, which were delivered by defendants to the guardian of Edward O. Friend, and except a few receipts for money paid by the said Matthew for clothing and tuition of the said Edward O. Friend ; that they believed the estate of Edward Friend to have been inconsiderable, but, under the circumstances stated, they were unable to say what was the amount received from it by their testator, or to render any correct account of his transactions in the administration.

An account was taken in this cause, by order of the court, of the defendants’ administration of Matthew Cheatham’s estate ; by which it appeared that on the 1st of June 1821, the defendant Branch Cheatham was indebted to the estate in the sum of 2372 dollars 18 cents, and the defendant Peter F. Edwards in the sum of 1828 dollars 8 cents. No account was directed or taken, in this suit, of Matthew Cheatham’s administration on the estate of Edward Friend; but on the 12th of March 1822, the court decreed that the defendant Branch Cheatham should pay the plaintiff 1949 dollars with interest &c. and that the defendant Peter F. Edwards should pay the said plaintiff 1501 dollars 95 cents with interest &c. “which sums constitute the proportion to which the plaintiff in this cause is entitled, of the sum which appears by the said report to be in the hands of the defendants, belonging to the estate *of Matthew Cheatham deceased.” The decree gave leave to the plaintiff to amend his bill and make new parties. And no further proceeding was had in this cause, until the final decree hereafter mentioned.

In the same month of October 1817, a bill was exhibited in the same superiour court of chancery, against the same defendants and the said Cornelius Buck administrator de bonis non &c. of Edward Friend deceased, by Thomas Branch late sheriff of Chesterfield, to whom had been committed the estate of Joseph Friend deceased, unadministered by the said Edward Friend and by the said Matthew Cheatham, prior successive administrators with the will annexed of the said Joseph Friend deceased. The bill sets forth the will of Joseph Friend, whereby the testator appointed Edward Friend and another person his executors, and desired them to sell, for the benefit of his son *208Edward O. Friend, certain real property which he specified. There were no other provisions of the will. It was then alleged in the bill, that Edward Friend, having renounced the executorship, qualified as the administrator with the will annexed of Joseph Friend; and that the other person named as executor died, without having in any manner taken upon himself the executor-ship, or meddled with the’ estate. That *immediately*after the death of Joseph Friend, Edward Friend took possession of the whole estate,' real and personal, which was considerable, and held the same until his death, without ever settling the accounts of his administration. That Edward Friend left a will, of which Matthew Cheatham was named executor ; who renounced the executorship, and qualified as administrator with the will annexed. That shortly after the death of Edward Friend, the said Matthew Cheatham also qualified as administrator with the will annexed of Joseph Friend, of the estate unadministered by the said Edward Friend, and immediately took possession of the whole of- such unadministered estate, *both real and personal, which he held until his death, without ever settling either the accounts of Edward Friend’s administration, or the accounts of his own administration, on the estate of Joseph Friend deceased. That the defendants Branch Cheatham and Peter F. Edwards had qualified as administrators of the said Matthew Cheatham, with his' will annexed; and that the estate of Edward Friend, unadministered by the said Matthew Cheatham, had been committed for administration to the defendant Buck, with the will of the said Edward annexed. That Edward Friend, the first administrator of Joseph, sold all the real property specified in the will, except one tract of land, and the purchase money was either collected by the said Edward in his lifetime, or was or might have been collected by Matthew Cheatham the administrator de bonis non, after Edward’s death. That besides the real estate mentioned in the will, Joseph Friend was seized and possessed, at the time of his death, of a very considerable estate, both real and personal, and had debts due to him to a very large amount. That several claims of large amount were still existing against Joseph Friend’s estate, and for the purpose of settling those claims, and making distribution of the estate, it was necessary that the plaintiff should bring all persons indebted to the said estate to a settlement. That Matthew Cheatham, from the time of his qualification as administrator de bonis non of Joseph Friend’s estate, besides the collection of large sums of money due that estate, annually received the proceeds of large crops made on the land, and large sums for the hire of slaves. The bill (waiving any account of Edward Friend’s administration on the estate of Joseph Friend, unless the payment of Joseph Friend’s debts should make it necessary) prayed that the defendants administrators of Matthew Cheatham might be compelled to render an account of all the assets which were of the said Joseph Friend at the time *of his death, left unadministered by the said Edward Friend, before a commissioner of the court; that the court would decree to the plaintiff whatever property or money might have come to the hands of Matthew Cheatham administrator as aforesaid of Joseph Friend, belonging to said Joseph’s estate; and general relief.

The administrators of Matthew Cheatham answered, that they had delivered to the plaintiff the bonds and notes belonging to Joseph Friend’s estate, which they had found among their testator’s papers; that the slaves, stocks &c. belonging to the said estate, had, since their testator’s death, been received into possession of the guardian of Edward O. Friend, only child and heir of Joseph Friend; that they did not know, and could not ascertain from an examination of their testator’s papers, what sums of money were or might have been'collected by him on account of Joseph Friend’s estate; but they had heard and believed that the said estate was not by any means profitable.

At this stage of the proceedings, Branch the plaintiff died, and the cause was revived in the name of William Clarke sheriff of Chesterfield and administrator de bonis non of Joseph Friend.

On the 3d of June 1819, the court made an order that the administrators of Matthew Cheatham should render before a commissioner an account1 of all the assets which were of Joseph Friend at the time of his death, left unadministered by Edward Friend at the time of his death, and of the said Matthew Cheatham’s administration thereof, as well as an account of their own administration of Matthew Cheatham’s estate. On the 19th of February 1820, the order was extended, so as to require the same defendants to settle an account of Matthew Cheatham’s administration of the estate of Edward Friend deceased.

On the 7th of March 1820, the commissioner reported that he had found it impracticable to separate the transactions ^relating to Joseph Friend’s estate, from those relating to Edward Friend’s estate. He therefore returned a joint account of Matthew Cheatham’s administration of both estates, shewing a balance due from the said administrator, on the 31st of December 1819, of 14908 dollars 94 cents, principal and interest. In this account, the administrator received credit for a number of bonds belonging to the estates of the two decedents, which appeared to have been transferred by him to the guardian of Edward O. Friend. The account so stated was approved by the court.

The two causes of Burfoot against Cheat-ham’s adm’rs, and Joseph Friend’s adm’r against Cheatham’s adm’rs, were actively prosecuted during a long period. The proceedings in each were very similar, and generally simultaneous ; and as well at the time of pronouncing the final decree, as on occasion of various interlocutory decrees, whereby partial payments were directed to be made to the plaintiffs respectively, the causes were heard together. In the progress of *209each case, new parties were brought before the court as defendants, the additional parties being the same in each ; and various additional accounts were thereby rendered necessary, and from time to time were taken. It is not material to detail the particular proceedings in the case of Burfoot plaintiff; but in the suit instituted by the administrator of Joseph Briend, it is necessary to state a part of the proceedings with some degree of minuteness.

In the last mentioned case, the record states that on the 13th of .Tune 1822, on the motion of the plaintiff, leave was given him to amend his bill and to make new parties ; and the cause was sent to the rules to be further proceeded in. And at the rules holden in the clerk’s office in the month of July 1822, “came Edward O. Briend administrator de bonis non of the said Joseph Briend deceased, by his counsel, and exhibited his bill by way of amendment and supplement to the original *bill aforesaid, against the aforesaid B. Cheatham and P. B. Edwards, administrators with the will annexed of M. Cheatham deceased, and a certain Martha Cheatham, which amended and supplemental bill is in the words following, viz. — To the honourable Creed Taylor, judge of the superiour court of chancery for the Richmond district: Humbly complaining sheweth unto your honour' your orator Edward O. Briend, administrator de bonis non with the will annexed of Joseph Briend deceased, and also administrator de bonis non with the will annexed of Edward Briend deceased, that your orator is the only child, sole devisee, legatee and heir of the said Joseph Briend deceased, and is also the sole devisee and legatee of his uncle the said Edward Briend deceased.” The bill then details the proceedings which had taken place in the two suits instituted by Buck administrator of Edward Briend, and by Branch administrator of Joseph Briend, respectively, against the administrators of Matthew Cheatham, stating the qualification of the successive administrators of Joseph Briend and Edward Briend, and that the complainant Edward O. Briend, having attained his age of 21 years, had recently qualified as administrator de bonis non of both the said decedents, with their respective wills annexed. Branch Cheat-ham, Peter B. Edwards and Martha Cheat-ham are made defendants, in the character of devisees and legatees of Matthew Cheat-ham deceased.

In April 1826, a further amended bill was filed *by*the said Edward O. Briend, styling himself simply “ administrator de bonis non with the wills annexed of Joseph Briend and Edward Briend deceased,” the object of which was to subject to the plaintiff’s demand certain property, real and personal, charged to have been conveyed by Peter B. Edwards (who was now dead) for the benefit of his wife and children, by deeds made without valuable consideration, and certain other property ^charged to have been conveyed by the said Edwards for the indemnity of William Winfree, one of the sureties of Edwards as administrator of Matthew Cheat-ham. This bill further charged that Branch Cheatham and the said Edwards executed a joint bond as administrators of Matthew Cheatham, with Thomas Graves junior, O. Winfree and the said William Winfree as their sureties. The surviving co-obligors of Edwards in this administration bond, and the representatives of those who were now dead, and all the parties interested under the several deeds executed as aforesaid by Edwards, in his lifetime, were made defendants.

On the 3d of July 1829, the three causes of Burfoot plaintiff, Buck administrator de bonis non of Edward Briend, plaintiff, and Edward O. Briend administrator de bonis non of Joseph Briend, and also administrator de bonis non of Edward Briend, plaintiff, came on to be finally heard. The' court declared that after exhausting the whole property of Matthew Cheatham deceased which came to the hands of his devisees 3.nd legatees, Branch Cheatham, Peter B. Edwards and Martha Cheatham, there still remained due to the plaintiff Burfoot the sum of 1460 dollars 47 cents with legal interest from the 27th of April 1829, and to the plaintiff Edward O. Briend the sum of 6394 dollars 79 cents with like interest from the same day ; and that it was manifest that the assets of Matthew Cheatham’s estate applicable to the payment of the debts due to the plaintiffs, if they had been preserved from waste, and managed with ordinary care, would have been amply sufficient to satisfy the principal money and interest due the plaintiffs from the said estate. Therefore the court decreed that the defendants Branch Cheatham, W. Bindley sheriff of Chesterfield and administrator of Peter B. Edwards deceased, out of the estate of his intestate in his hands to be administered, and William Winfree the surety for the faithful ^administration by Branch Cheatham and Edwards of Matthew Cheatham’s estate, pay to the plaintiff Burfoot and the plaintiff Edward O. Briend the sums of money respectively due them with interest as aforesaid, and to the several plaintiffs in the three causes their costs of suit.

Brom this decree the defendant Branch Cheatham appealed.

Stanard and. Rhodes for the appellant.

Johnson, Eeigh and Taylor for the appellees.

*

Administrator d. b. n. — Suits by — Devastavit of Predecessor. — The commission of administration *de bonis non*extends only to *unadministered assets,*and the administrator *d. b. n.*cannot, therefore, call his predecessor to account for a devastavit, for that is an administration, though an ill one. The remedy in such case belongs to the creditors and others concerned in the estate. 3 Min. Inst. (2d Ed.) 571, citing Coleman v. McMurdo, 5 Rand. 52, *Cheatham v. Friend,*9 *Leigh*580, and Dodson v. Simpson, 2 Rand. 294. See further on this subject, monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6 ; Va. Code, § 2648.

In Wooddell v. Bruffy, 25 W. Va. 469, it is said : ‘‘By the sale of the land Kerr, the executor, converted the land into money or bonds due to himself and thereby such money or bonds became administered assets and could not legally pass into the hands of the plaintiff as administrator *de bonis non*of Bruffy. — Estill and Eakle v. McClintic, 11 W. Va. 399 ; *Cheatham v. Burfoot,*9 *Leigh*580.”

*

1 Rev. Code, ch. 32, p. 79.

PARKER, J.

These cases have been argued, by the direction of the court, on preliminary questions affecting the rights of the complainants in the court below to sue in the characters they respectively held.

Eawson Burfoot exhibited his bill in the character of “ one of the freeholders and housekeepers within the Manchester parish in the county of Chesterfield,” suing “as well for himself, as for and on behalf of the other freeholders and housekeepers within the said parish.” He proceeded to state that the overseers of the poor for the county,' by virtue of the act of assembly passed the 12th of January 1802, had sold certain glebe lands within that parish, and having collected the purchase money, had paid it over, by'direc*210■tion of the said freeholders and housekeepers .or a majority of them, to Matthew Cheatham, their agent for the purpose of investing it in bank stock. That the money was so invested by Cheatham, and the dividends received by .him, but that he had failed in his lifetime to • pay them over, and that his administrators, although since applied to by the complainant, in his own right, and as agent duly appointed by and on behalf of the other freeholders and housekeepers, had still neglected and refused ■to pay them. The bill therefore was filed for an account and decree for the dividends remaining unpaid, with interest.

*The defendants demurred to this bill, assigning as causes of demurrer, that if the complainant had any cause of action, he had a plain remedy at law *;*and .moreover, that he shewed no right to institute the suit, either in his own behalf, or in behalf of the freeholders and housekeepers of the parish of Manchester. I shall pass over the first objection, and confine myself to the enquiry whether the plaintiff was authorized to sue under the circumstances stated in the bill, admitting him to have been the duly-authorized agent of the freeholders and housekeepers, and prosecuting the claim for their benefit as well as his own ; and admitting also, for the sake of the argument, that the money .was paid over to Cheatham to make an investment, by direction in writing under the hands of a majority of the freeholders and housekeepers, addressed to the overseers of the poor, and that the freeholders and housekeepers had authority thus to provide' for the accumulation of the fund, before a final appropriation of it. Conceding all this, without which Burfoot would have had no ground to stand upon, still I think the demurrer ought to have been sustained. The act of assembly concerning glebe lands directs their sale by the overseers of the -poor, and vests in them the right of action for the purchase money, and for all the purposes of carrying the act into effect. It does not give such right of action to the freeholders and housekeepers in any case, nor does it bestow upon them any property or interest in the fund. All that it does is to require the overseers, or a majority of them, to appropriate the money arising from the sale of the glebes, to the poor of the respective parishes, “or to any other objects which a majority of the freeholders and housekeepers therein may direct, by a writing from under their hands, directed to the said, overseers provided that no appropriation shall be made “to any religious purpose whatsoever.” This is no more than a bare power or authority in the freeholders *and housekeepers to direct the appropriation to other objects than the poor of the parish; and unless it could be shewn that they had a right to appropriate to their own individual use, and had done so, to the extent of giving to themselves a common property in the fund, by a partial disposition of it for accumulation, they could not sue in their own names, nor in the name of an agent. But it seems clear to me that the' act does not authorize an appropriation to private and individual uses. The “other objects” spoken of must be intended public objects, of a nature similar to the support of the poor, in respect of being a common benefit; and the appropriation to such objects is to be made by the overseers of the poor, and not by the freeholders and housekeepers. Their power is to direct the appropriation, and nothing more. Until the direction is given, the appropriation actually made, and all the purposes of the act fully accomplished, the right of action is vested and remains in the overseers of, the poor, both by the terms of the law, and as trustees to carry it into complete effect. The object of the legislature, as shewn by the preamble and the enacting clauses of the act, was not to return the fund to the then freeholders and housekeepers of each parish, under the notion that it was drawn from their predecessors (for it was just as likely that the other inhabitants of the parish were the heirs and representatives of those contributing to purchase the glebes,' as themselves) : but the object was to apply it to the benefit of the people generally, on whom it devolved at the dissolution of the british government; and, as the best means of effecting that object, to authorize those particularly interested in the common good to direct the appropriation, for public uses. An appropriation to private, individual uses would not only have defeated the manifest purposes of the act, but have been attended with difficulties and inconveniences, arising out of the number and shifting character of the freeholders *and housekeepers, which we cannot suppose to have been within the'contemplation of its framers.

Again, the direction to pay over the fund to an agent for investment is no appropriation to any definite object, and therefore there are none to claim as persons in whose favour the power has been exercised. It is, at most, only a partial execution of the authority conferred by the act, which left in the freeholders and housekeepers nothing more than a bare authority to direct its farther _ application to the contemplated objects, uncoupled with property or interest, until, at least, such “further appropriation was actually made. It is argued that the object was to increase the fund by accumulation, and then finally appropriate it. If this be so, it cannot be pretended that the freeholders and housekeepers have a right to sue while the objects of appropriation remain uncertain. The cases in which one or more plaintiffs have been allowed to become the champions of the rights of others, as well as of their own, are all cases where there is a common property or interest involved, and not a mere authority delegated by law. The principle on which they depend was clearly stated by lord Macclesfield in Chancery v. May, Prec. in Ch. 592, and is fully illustrated in the cases cited in 2 Madd. Ch. Pract. 180, and in Calvert on Parties to Suits in Equity, pp. 28, 29, 30, — but it is unnecessary to refer .to them, as my opinion turns upon the right of the freeholders and housekeepers themselves to sue, and no one contends that one or more persons can bring- a suit in the name of others, however numerous, who could not *211sue in their own names if their number were smaller.

So much for the case of Cheatham against Burfoot. As to the two other cases of Cheatham against Friend, I regret to say that I cannot distinguish them from the case of Wernick’s adm’r v. M’Murdo &c., 5 Rand. 51, which this court is bound to respect. They were commenced and *prosecuted throughout by successive administrators of Joseph and Edward Friend, to recover assets converted by Matthew Cheatham a former administrator. They asked, indeed, for a general account; not, however, to enable them to distinguish between assets converted and assets remaining in kind, and to receive the latter; for every step in the cause shews that it was for assets administered they sued, not for assets unadministered. It appeared at an early stage of the cause, that the assets of the latter character had in fact been delivered up to the guardian of Edward O. Friend; and no further notice is taken of them in any future proceeding. The commissioner’s account, on which the final decree was obtained, includes converted assets alone. After that report was returned to court, the suits were revived by successive administrators de bonis non, claiming the benefit of that proceeding, and asking a decree for the balance found due, consisting altogether of converted assets ; and the final decree affirms their title to have the benefit of that proceeding, and to recover the assets so converted. Sow, if Edward O. Friend had been only the administrator de bonis non of Joseph and Edward, it is plain, under the authority of Wernick’s adm’r v. M’Murdo &c. that he could not recover these assets, nor even ask an account of them. But it is said that the first administrators de bonis non sued in respect of their title to the unconverted assets; that Edward O. Friend the succeeding administrator had a right to revive that suit; and that, as he was also the heir, distributee and legatee of the two Friends, he might, in such revivor, include his claim to the converted assets, as he might, in an original suit, have claimed in both characters. The answer to this view of the case, satisfactory to my mind, is, first, that it is perfectly obvious the first administrators sued for converted assets alone ; secondly, that Edward O. Friend made himself a party to the proceedings already had, in no other character than as ^administrator de bonis non, the allegation in his first bill that he is also heir, devisee and legatee (which he omits in his subsequent amended bill) being merely the incidental statement of a fact, and not explanatory of the character in which he revived the suit; and thirdly, that if he had attempted to revive and to have the benefit of former proceedings, in a different character from the one originally asserted, and under which those proceedings were had, he could not have succeeded, without a violation of the rules in relation to bills of revivor and supplemental bills, properly so called, or originál bills in the nature of supplemental bills. As to a mere bill of revivor it is unnecessary to speak. A supplemental bill must be in aid of what the court has already done ; and it has been decided that if a plaintiff sues without good title, but afterwards acquires it, he cannot make it effective by amending his bill. Pilkington v. Wignall, 2 Madd. Ch. Pract. 244; Story’s Equity Plead. 275, § 339. By a parity of reason, if one sues in one character, under title derived from that character, and dies, another having the same title, and also a different one, cannot make the last available by amendment or any other continuance of the original suit. Story’s Equity Plead, qua supra. One of the characteristics of a supplemental bill is, that the plaintiff sues in respect of the same title in the same person as stated in the original bill. Ibid. Calvert on parties to Suits in Equity, pp. 96, 100; Mitf. Plead. 64, (margin.) There can in this mode be no change of interest affecting the questions between the parties, but only a change of the person in whose name the suit must be further prosecuted (Mitf. Plead, qua supra) ; and neither in this way, nor by an original bill in the nature of a supplemental bill, which lies where new parties with new interests in the same subject are brought before the court (for the oases in which an original bill in the nature of a supplemental bill lies, see Story’s Equity Plead. 279, et *seq. § 346, 347, 348, 349, 350,) can persons set up different and distinct rights from those asserted in the original bill, nor can a party plaintiff in his own right have the benefit of proceedings instituted and conducted by persons claiming in a representative character. Edward O. Friend could only claim the converted assets by a different title from that asserted in the original bill, and for them his only remedy was by a new suit.

The case presented in this record amounts to this. Administrators de bonis non have instituted suits calling for the settlement of an administration account, which, according to Wernick’s adm’r v. M’Murdo &c. they had no right to investigate, and which it was not necessary to investigate, to enable them to recover assets unadministered. The settlement is made of the converted assets alone, and then another person attempts to obtain the benefit of that proceeding, not by the same title first asserted, but by a different and even hostile one, having no privity with the other. And that title is set up for the first time in this court; although it is perfectly obvious, that in the court below, ail the proceedings were conducted, and the decree finally obtained, by virtue of the title asserted in the original bill. All this appears to me to be entirely irregular, and must cause a reversal of the decree ; however reluctant we may be, after the proceedings have been spun out to such a length, and when great injustice may be the possible consequence, to pronounce such an opinion.

The other judges concurred. Decree reversed, and bills dismissed.