GOLDTHWAITE, J.
— This cause has be'en re-' [361]*361moved to this Court by writ of error, and it is now assigned for cause of reversal—
1st. That the bill in which Lardner C. French was charged as administrator of his own wrong,should not have been dismissed.-
2nd. That the bill of revivor against Medloek, as-the administrator cf Magnus Draughon, should not have been dismissed.-
3rd. That the final decree, dismissing the bill, as-to French, administrator' of Locke, should not have’ been made.-
Since the cause has been removed to this Court,, one of the complainants, Jane Edwards, has died ; and her personal representatives not having been made parties, the suit must abate, in so far as she is-concerned. The death of the defendant, French, has also been suggested, and his personal representatives have been made parties.
It will much facilitate the proper understanding of the cause, if the bill shall be so analyzed, as to present the' distinct equities which arise from the facts stated in the original bill, as between the complainants and the defendants, in their different representative characters.
It seeks to charge Mary French and her husband, as the administratrix and administrator of the estate of Magnus Draughon, for such portion of the estate as has not been distributed. This consists of,
1st. The personal estate, sold and unaccounted for. .
2nd. The debts due Draughon, in North Carolina, which it charges they are accountable for, because [362]*362Mrs. Draughon permitted Locke to obtain possession of them, by voluntarily relinquishing to him the right to administer on such part of her husband’s estate as was in North Carolina.
It seeks to charge the defendant, French, as the administrator of Locke, with—
1st. The debts due to Draughon, in North Carolina, which were, or which could have been collected under the administration, in North Carolina.
2nd. For the several slaves, which were in the possession of Locke when he died, which belonged to the estate of Magnus Draughon, but whiclí are charged to have been taken by French, under color of his administration on Locke’s estate.
3d. For the hire of the two slaves, Amy and Juba, from the death of Draughon ; and hire for the others from the death of Locke.
4th. For the value of the slave Anthony, which is charged to have belonged to the estate of Draughon, and was sold after his death, by Locke.
It should be constantly remembered, throughout the examination of this case, that the administration on Draughon’s estate, and the administration on Lock’s estate, were in the charge of the same individual, subsequent to the death of Moore. , French, administrator of Draughon, in right of his wife, had as complete control over it, as French, administrator in his own right, could have over the estate of Locke. Was one of the estates indebted to the other, or had one intestate taken and converted to his own use, the property of the other, no suit or action could be maintained, so long as the administrations were united in the same person. French and wife, as admi[363]*363nistrators of Draughon, could not have sued French, administrator of Locke. And the rule would have obtained, if French, before the death of his intes-tates, had taken and converted their property to his use.
Without adverting to this distinctive feature in the bill, it might be thought there was no equity in it, so far as the relief is sought for the taking or converting the slaves; and perhaps, also, so far as relief is sought against French, as the administrator of Locke, for the money collected on the administration in North Carolina.
The bill seems to have been framed with a view to the particular equities, which have been before slated; but the only appropriate prayer for relief against French, as the administrator of Locke, seems to the Court to be—
1st. For the amount of the debts collected in North Carolina, on the administration there, supposing it not to be ancillary to the administration here, and that a payment by Locke, to Mrs. French, would not discharge him from his liabilities to account directly, to the distributees of Draugbon’s estate.
2nd. For the value of the slave Anthony : and
3rd. For the hire of the two slaves, Amy and Juba, from the death of Draughon, to the time of the death of Locke.
In relation to the slaves themselves, and also the other slaves, in which it is said Locke had a life estate, they never could, on the facts stated in the bill, be made the subject of a charge against Locke’s estate, unless Locke had converted them, in his life-time. French was not, nor could he be in possession of them, [364]*364as Locke’s administrator. — It is alleged, Locke had no title, and that they belonged to the estate of Draughon — consequently, when French came to the possession of them, it was as a tort-feasor, or by virtue of the title vested with him., as Braughon’s administrator ; and, it seems, he would not be permitted to allege against the distributees ,of Draughon, that Jie took them, as a wrong-doer. If they did not belong to Locke’s estate, he would have had no right ■to take them, except they did belong to the estate of Draughon, which estate he also represented.
An analogy is believed to exist between this case and that of a remitter, which is defined to be, “where he who has the true property in lands, but is out of possession thereof, and hath no right to enter, without recovering possession by action, has after-wards the free-hold cast on him by some subsequent, and of course defective title — in this case he is remits -ted, o.r sent back by operation of law, to his ancient and better title.”
Now here, if the facts stated in the bill be true, French having the possession cast on him, either by his own act, or by operation of law, is remitted to his title, under the estate of Draughon. '
If a tort-feasor died in the possession of slaves, to which he had not acquired a title by possession, and administration on his estate should be committed to the true owner of the slaves, would he not be remit:ted to his better title?
And in relation to all the other matters, charging French, as administrator of Locke, with indebtedness ,and accountability to the estate of Draughon, we [365]*365think the doctrine of retainer, applies with much force.
It is true, that all the authorities in reference to retainer, speak of <£ debtsbut the reason of the rule, as laid down in Toller on Ex. 295, is this.— “ This remedy arises from mere operation of law, on the ground, that it were absurd and incongruous, that he should sue himself, or that the same hand should at once pay and receive the same debt; and therefore, he may appropriate a sufficient part of the ■assets, in satisfaction of his own demand—otherwise he would be exposed to the greatest hardship: for, since the creditor who first commences a suit is entk tied to a preference in payment, and the executor can commence no suit, he must, in the case of an insolvent estate, necessarily lose his debt, unless he has the right of retaining.”
This rule applies with equal force, to a demand which is unliquidated in its character.
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GOLDTHWAITE, J.
— This cause has be'en re-' [361]*361moved to this Court by writ of error, and it is now assigned for cause of reversal—
1st. That the bill in which Lardner C. French was charged as administrator of his own wrong,should not have been dismissed.-
2nd. That the bill of revivor against Medloek, as-the administrator cf Magnus Draughon, should not have been dismissed.-
3rd. That the final decree, dismissing the bill, as-to French, administrator' of Locke, should not have’ been made.-
Since the cause has been removed to this Court,, one of the complainants, Jane Edwards, has died ; and her personal representatives not having been made parties, the suit must abate, in so far as she is-concerned. The death of the defendant, French, has also been suggested, and his personal representatives have been made parties.
It will much facilitate the proper understanding of the cause, if the bill shall be so analyzed, as to present the' distinct equities which arise from the facts stated in the original bill, as between the complainants and the defendants, in their different representative characters.
It seeks to charge Mary French and her husband, as the administratrix and administrator of the estate of Magnus Draughon, for such portion of the estate as has not been distributed. This consists of,
1st. The personal estate, sold and unaccounted for. .
2nd. The debts due Draughon, in North Carolina, which it charges they are accountable for, because [362]*362Mrs. Draughon permitted Locke to obtain possession of them, by voluntarily relinquishing to him the right to administer on such part of her husband’s estate as was in North Carolina.
It seeks to charge the defendant, French, as the administrator of Locke, with—
1st. The debts due to Draughon, in North Carolina, which were, or which could have been collected under the administration, in North Carolina.
2nd. For the several slaves, which were in the possession of Locke when he died, which belonged to the estate of Magnus Draughon, but whiclí are charged to have been taken by French, under color of his administration on Locke’s estate.
3d. For the hire of the two slaves, Amy and Juba, from the death of Draughon ; and hire for the others from the death of Locke.
4th. For the value of the slave Anthony, which is charged to have belonged to the estate of Draughon, and was sold after his death, by Locke.
It should be constantly remembered, throughout the examination of this case, that the administration on Draughon’s estate, and the administration on Lock’s estate, were in the charge of the same individual, subsequent to the death of Moore. , French, administrator of Draughon, in right of his wife, had as complete control over it, as French, administrator in his own right, could have over the estate of Locke. Was one of the estates indebted to the other, or had one intestate taken and converted to his own use, the property of the other, no suit or action could be maintained, so long as the administrations were united in the same person. French and wife, as admi[363]*363nistrators of Draughon, could not have sued French, administrator of Locke. And the rule would have obtained, if French, before the death of his intes-tates, had taken and converted their property to his use.
Without adverting to this distinctive feature in the bill, it might be thought there was no equity in it, so far as the relief is sought for the taking or converting the slaves; and perhaps, also, so far as relief is sought against French, as the administrator of Locke, for the money collected on the administration in North Carolina.
The bill seems to have been framed with a view to the particular equities, which have been before slated; but the only appropriate prayer for relief against French, as the administrator of Locke, seems to the Court to be—
1st. For the amount of the debts collected in North Carolina, on the administration there, supposing it not to be ancillary to the administration here, and that a payment by Locke, to Mrs. French, would not discharge him from his liabilities to account directly, to the distributees of Draugbon’s estate.
2nd. For the value of the slave Anthony : and
3rd. For the hire of the two slaves, Amy and Juba, from the death of Draughon, to the time of the death of Locke.
In relation to the slaves themselves, and also the other slaves, in which it is said Locke had a life estate, they never could, on the facts stated in the bill, be made the subject of a charge against Locke’s estate, unless Locke had converted them, in his life-time. French was not, nor could he be in possession of them, [364]*364as Locke’s administrator. — It is alleged, Locke had no title, and that they belonged to the estate of Draughon — consequently, when French came to the possession of them, it was as a tort-feasor, or by virtue of the title vested with him., as Braughon’s administrator ; and, it seems, he would not be permitted to allege against the distributees ,of Draughon, that Jie took them, as a wrong-doer. If they did not belong to Locke’s estate, he would have had no right ■to take them, except they did belong to the estate of Draughon, which estate he also represented.
An analogy is believed to exist between this case and that of a remitter, which is defined to be, “where he who has the true property in lands, but is out of possession thereof, and hath no right to enter, without recovering possession by action, has after-wards the free-hold cast on him by some subsequent, and of course defective title — in this case he is remits -ted, o.r sent back by operation of law, to his ancient and better title.”
Now here, if the facts stated in the bill be true, French having the possession cast on him, either by his own act, or by operation of law, is remitted to his title, under the estate of Draughon. '
If a tort-feasor died in the possession of slaves, to which he had not acquired a title by possession, and administration on his estate should be committed to the true owner of the slaves, would he not be remit:ted to his better title?
And in relation to all the other matters, charging French, as administrator of Locke, with indebtedness ,and accountability to the estate of Draughon, we [365]*365think the doctrine of retainer, applies with much force.
It is true, that all the authorities in reference to retainer, speak of <£ debtsbut the reason of the rule, as laid down in Toller on Ex. 295, is this.— “ This remedy arises from mere operation of law, on the ground, that it were absurd and incongruous, that he should sue himself, or that the same hand should at once pay and receive the same debt; and therefore, he may appropriate a sufficient part of the ■assets, in satisfaction of his own demand—otherwise he would be exposed to the greatest hardship: for, since the creditor who first commences a suit is entk tied to a preference in payment, and the executor can commence no suit, he must, in the case of an insolvent estate, necessarily lose his debt, unless he has the right of retaining.”
This rule applies with equal force, to a demand which is unliquidated in its character. There seems to be no sufficient reason which can be urged, why the executor or administrator should not retain, in all cases, when the action would survive. Certainly the damages on an action of covenant, or assumpsit, for the non-performance of a contract, are not higher in a moral standard, than those in detinue or trover.
If A be indebted in a bond to B, and die, having appointed B his executor, who, after having inter-meddled with the goods, and before probate, also dies, although before his death he did not elect in what particular effects he would have the property altered, yet his executor shall have the same power of retaining.* And the right to retain exists in equity, .as well as at law.†
[366]*366This reasoning, if Correct, establishes, that all the equities of this bill might be enforced against French, administrator in right of his wife, of Magnus Braugh-on’s estate ; but we do not think it is a consequence, that French, as the administrator of Locke, would be released, or that there is no equity in the bill against him in that right. Independent of its presenting the case of two funds, against which the dis-tributees of Draughon might elect to proceed, or in case of the deficiency of the one, to resort to the other, it was essential to make the administrator of Locke a party to the bill — inasmuch as the bill seeks to establish the liability of the estate, and not merely to call on the administrator as a trustee to distribute the effects.
In this respect, the bill presents a remarkable difference in the action sought against the individuals in their several representative capacities. It calls on therepresentatives ofBraughon, as trustees, to compel a distribution ; but as against the representatives of Locke, it not only does this, but also to establish a liability.
Having arrived at the conclusion that there is equity in the bill, against French, as the administrator of Locke, we might dismiss the further consideration of the case, if it did not involve some questions, which are material to the cause as it now stands.
It seems to have been considered necessary, that the administrator de bonis non, of Magnus Braughon, should be made a party to this cause. If such was the fact, it was error to dismiss the bill against Med-lock — because, being a necessary party, if sent out of [367]*367Court, then lie must have been brought in, before a final decree could be pronounced. Our construction of the fourth rule of this Court, for the regulation of Chancery practice, is, that a bill of revivor, or any other bill which is ancillary to the main cause before the Court, cannot be dismissed by itself, under this rule. When the hill is dismissed for want of prosecution, it should be the main bill, and the whole cause should be at an end..
But this particular bill was rightfully dismissed, though not for a right reason. There was no necessity for an administrator dehonisnon ofBraughon, to be before the Court, under the facts then or since exhibited. The bill was filed against administrators to distribute an estate ; and inasmuch as no liability was to be enforced against the estate, as such, it needed no representatives to defend its rights. The administrator, like any other trustee, was, before the Court, called on to account for a trust fund.
This Court, in the case of Chamberlain, adm'r vs. Bates, adm’r* has decided, that “an administrator, de bonis non, cannot maintain an action at law, against the representatives of a former administrator, to recover money received by the latter in the course of a partial administration, and not accounted for or paid over; andas a consequence, it must result that the administrator of an administrator, is liable to account directly to the creditor or distributee.
The case of Coleman v. McMurdo & Prentis,† is an authority to the same effect, and settles, conclusively, that the representative ofi an administrator may be sued directly, by the creditor or distributee, where the assets have been wasted or converted by him.
[368]*368The only remaining point to be examined, is the dismissal of the supplemental bill, seeking to charge French, as administrator de son tort, of Draughon, after the death of Mrs. French.
It is presumed that the expression, administrator, de son tort, was introduced into this bill, by mistake, and that executor, de son tort, was intended. It is difficult to conceive how an administrator in right of his wife, on her decease, could have his character modified or changed. It may be sufficient to say, that this proceeding was \yholly unnecessary, when viewed in any other light, than suggesting to the Court below the death of one of the defendants.— There was, therefore, no error in dismissing this supplemental bill.
It may be necessary to add, that previous to a final decree in the Court below, all the distributees should be made parties, or reason shewn why the same cannot be done.
The decree of the Circuit Court, dismissing the bill as to Medlock, must be affirmed; and the final decree dismissing the bill as to French, as administrator of Locke, must be reversed, and the cause remanded to the Circuit Court, with directions to proceed in the cause, and if necessary, to amend the bill, and make new parties; which we cqnceive to be necessary, so far as the other distributees of the estate of Magnus Draughon are interested ; and as the bill seeks to establish a liability against the estate of Locke, as well as to compel a distribution against the defendantFrench, for a fund already in his hands, it is considered that the administrator de bonis non of Locke, may be a necessary party to such parts of [369]*369the bill as seek to establish a disputed liability of the estate for the slave Anthony, and the hire of the slaves Amy and Juba, from the death of Braughon to the death ofLoe.be.
The oosts must be decreed against the repre.enta-tives of the defendant French, so far as the judgment is reversed, and in favor of Medlock, so far as affirmed.
HOPKINS, C. J. not sitting.
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