#### Caleb Spencer, *adm'r. of*Jeremiah Gibbs *v.*William Cahoon.

ÍÁ an action by an administrator, for an injury done to bis intestate* after a plea in bar, the defendant cannot impeach the grant of administration.

Detinue, for sundry slaves, originally brought by *Willi a tu H.*Gibbs, as the administrator of *Jernniah,Gibbs¿*The defendant, at the return day of the original writ, entered his appearance, and pleaded *non detinet,*and the statute of limitations ; upon which issue was joined. At a subsequent term, the death of *William R. Gibbs*was suggested, and the plaintiff came into court, and was made aparty under the act of 1824 *(Taylor’s Rev.*c. 1247") as administrator *de bonis non*of *Jeremiah Gibbs.*

On the trial, before his Honor Judge Strange, at Hyde, on the last circuit, it was objected, by the defendant, that neither *William R. Gibbs,*nor the plaintiff, ever were administrators of *Jeremiah Gibbs ;*and he produced the record of the County Court, at November’ tei-m, 1816, appointing *Stephen Gibbs*administrator of *Jeremiah.*

The plaintiff proved, that *Stephen Gibbs*and bis sureties, upon his appointment, had only signed and sealed a bond in blank; he also proved his own appointment and qualification at August term, 1830, of the County Court. His Honor, upon these facts, nonsuited the plaintiff, who appealed.

No counsel appeared for the plaintiff.

*Gaston,*lor the defendant, cited *Hoskins*v. *Miller '(ante*2 *vol.*360).

Rueein, Judge.

The plaintiff was nonsuited, because “he was not the *true*administrator” of *Jeremiah, Gibbs ;*and it has been argued here, as if that was the only point in the case, end as if it depended on the validity of the previous administration granted to *Stephen.*Such would have been the case, had issue been taken on Are plaintiff’s character by plea in abatement, ordemus* *81rer, instead of the defendant pleading in bar. Where indeed an administrator sues on his own possession, he does not make *profert*of his letters, but shows them on the trial as his title. Their validity may then he disputed. because that is the first opportunity of contesting them given to the defendant. But tiiis suit is brought by the administrator in that character, and is revived by the administrator *de bonis non ;*and must be taken to be on the intestate’s possession. The plea of *non deiinet*admits the administration, and that it was duly taken. It can never afterwards be brought into dispute in that action. This goes to the character of *Wm. B Gibbs*who brought the suit. But the same principle applies equally to the character of the present *plaintiff;*who is made a party under the act of 1824. It is true, that when a plaintiff (lies, no process is necessary to make his representative a party *j*nor is any plea given to the defendant to put the administration in issue. The party is admitted on motion. He must then show his right, and the defendant, who is kept in court two terms, must then state his objections. When the administrator is once made a party, the defend ant is concluded. *(Anonymous*1 *Hay. 455, McNair*v. *Ragland*1 *Deveraux' Equity Cases*533.) If indeed the court has been sur-prized or deceived, the power, not less than the disposition, exists to correct it. But it cannot be done by a nonsuit on the trial of an issue in bar. A motion, founded on a proper case, brings it directly before the court. And here there seems to be no ground for it; because there seems to be no dispute about the issuing of the letters to *Spencer,*founded on those admitted by the plea to have been granted to *William B. Gibbs,*who instituted the suit which, I repeat, must here be taken to have been on a detention from the first intestate.

Where an administrator seeks to revive a suit commenced by his intestate, the defendant may,' by motion, put the administration in issue.

It cannot limy-ever,be impeach, ed as a ground of nonsuit at the trial.

But where the defendant claims title by a grant of administration, previous to that of the plaintiff, or relies or his possession. *82against the first administrator.lie geiferal1"1 issue,1C prove the first nistration **be*cause this is in plaintiff’s title,

*81If indeed the question was upon the title of the defendant, as being derived from *Stephen*or as being good under the act of 1820 (Rev, c. 1055) by reason of an adverse possession without suit by *Stephen,*then the validity of the administration of *Stephen*would be a material question. And this would certainly be a cowpe-*82tent inquiry, so far as it did not conflict with the admis» sion of the plaintiff’s character stated in the declaration, and admitted by the plea in bar — namely, that he was t]uiy administrator at the bringing of the suit, or when he became a party. If. the defendant could show a previous administrator, though he was irregularly appointed, an'd though for that cause, his letters had been repealed, under whom the defendant claimed by purchase ; or* against whom he held while he could sue ; that would be admissible. For this is not a denial of the plaintiff’s character; but admitting it, shows a distinct bar. Such however does not appear to he the case *here;*for no con-nexion is stated between the defendant and Stephen, nor any possession against him. The only question seems to have been upon the validity of the plaintiff’s letters; which were taken to be invalid, because others had been granted to *Stephen Gibbs.*That was a point, into which the defendant had precluded himself from inquiring— The nonsuit must be set aside, and a new trial granted.

Per Curiam. — Judgment reversed.