Taliferro, administrator de bonis non of Polly Thompson v John Y. Bassett and wife; Same v. Robert J. Manning and wife; Same v. James Mannig and wife, 3 Ala. 670

ORMOND, J. The plaintiff in error is the administrator de bonis non, with the will annexed of Polly Thompson, who-was executrix of Asa Thompson, deceased, and was cited to-appear in the Orphans’ Court of Madison county, at the instance of the heirs of Asa Thompson, to settle the administration of Polly Thompson, on the éstate of Asa Thompson. He appeared voluntarily, as the record recites, and an account and settlement was made, and judgment rendered against him in favor of each of the heirs, to be levied of the goods and chattels of Polly Thompson, in his hands.

It does not appear from the record, that the plaintiff in error was appointed by the Orphans’Court of Madison, and the first .question is whether the Court had jurisdiction. The power of the County Court in matters confided to its charge, is certainly plenary; it is nevertheless clear that it is a Court of special and limited jurisdiction, and can exercise no power which is not conferred on it by statute.

By the grant of letters testamentary, or letters of administration, it acquires jurisdiction both over the subject and person, and may compel obedience to its mandates; but this is a power which no other County Court could exercise; from the nature of the case, it is exclusive, and such was evidently the intention of the legislature, in the various acts on this subject. Such has also been the

interpretation of similar laws in other States as shown in the cases cited: see Dakin v. Hudson, 6 Cow. 224; Seymour v. Seymour, 4 Johns. Chan. 210. As this is a Court of limited jurisdiction, every thing necessary to give the Court jurisdiction, should appear on the record; it must be shown affirmatively that the Court has power to act. Nor will it avail, that the party appeared voluntarily and submitted to the judgment of the Court- It is a doctrine well settled, that consent will not confer jurisdiction.

If however, the Court had jurisdiction by having appointed the plaintiff in error, this proceeding could not be sustained at common law; an executor or administrator of an executor or administrator eould not be sued for a debt due from their testator or intestate, notwithstanding such executor or administrator may have wasted or converted the goods of the first testator or intestate, because the act of the executor or administrator, being a devastavit, was a tort, and there was no privity between them, and in such cases resort was had to a Court of chancery, which granted the relief that could not be obtained at law.

Price v. Morgan, 2 Chan. Cases, 172; 2 Williams on Ex. 1234. This defect has been remedied in England, by the passage of the acts of the 30 Ch. 2; and 4 and 5 William and Mary, which provide that such second executors or administrators shall be chargeable in the same manner as the first executor or administrator might have been. In this State, no statute corresponding to the English statutes just cited, has been passed, and the matter therefore stands as it did at common law.

The plaintiff in error, as administrator de bonis non of Polly Thompson, became entitled only to such portion of her personalty as remained in specie, unadministered by her former representative, of which although the record is silent, it must be presumed she had, and to the extent of the assets thus received by him, he is alone answerable. Chamberlain, administrator v. Bates, administrator, 2 Porter, 550; Wernich v. Mc-Murdo, 5 Rand. 51.

Whether any thing came to his hands, does not appear from the record, nor was he cited to settle his own administration of the estate of Polly Thompson, but to settle the administration of Polly Thompson, of the estate of Asa Thompson, and that was the settlement actually made; and for the amount for which she was found indebted to each of the heirs of Asa Thompson, judgment was rendered against him, to be satisfied from the goods of Polly Thompson, in his hands to be administered.

At a subsequent term of the Court, a citation issued to him, to shew cause why the applicants should not have judgment and execution against him for their distributive share of the balance due from him as administrator of the estate of Asa Thompson, and upon the return thereof, judgment was recovered and execution directed to issue and be levied on the goods and chattels of Polly Thompson in his hands to be administered. This execution issued and was returned — no property found.

This statement shows very conclusively that the attempt here is to recover of the plaintiff in error for the devastavit of Polly Thompson, in .the administration of the estate of Asa Thompson, which not being provided for by statute, can only be effected in chancery, where the liabilities of the successive representatives of Asa and Polly Thompson and of their sureties can be adjusted.

Although the estate of Polly Thompson is doubtless primarily liable for the effects of Asa Thompson, changed or converted by her during her executorship, it is very clear that the bond executed by her on obtaining letters testamentary must stand as a security for the effects so changed or converted by her daring her administration.

Whether her sureties in the bond would also be responsible for the assets of Asa Thompson, which remained at her death, in specie unadministered, and which passed into the hands of the administrator de bonis non of Asa Thompson — or which may have come into the hands of the first executor of Polly Thompson, if one was appointed and qualified, it would not be proper now to anticipate : all these different persons, who at different times, had the administration of the estates of Asa and Polly Thompson, would be proper and necessary parties to the bill, if one is filed, that the relative rights and responsibilities of each might be adjusted in one suit.

Let the judgment of the Court below be reversed.