RodMAN, J.
Three questions are presented in this case:
1. Can a plaintiff who has recovered judgment against an administrator, revive or enforce the judgment after the death of the administrator, against an administrator
de bonis non.
At common law there was no privity between an administrator and an administrator
de bonis non. Ellison
v.
An
drews, 12 Ired. 190. If an administrator recovered a judgment and died before collecting it, it became ineffectual. The ad
ministrator
de bonis non
could not sue on it, or avail himself of it in any way, though he might sue on the original cause of action.
Grant v. Chamberlain,
4 Mass. 611;
Beall
v.
New Mexico,
16 Wall. (U. S.) 534.
The inconvenience has been remedied by legislation more or less fully in England, and probably in most of the American States. In this Slate the Revised Code, chap. Í, sec. 4, enacts that no 'Nit;-.'?! to which an executor or administrator is plaintiff or
defendant,
shall abate by his death, but it may be revived against the administrator
de bonis non, dec.
Beo also O. O. I’, see. o±, and Rev. Code chap. 46, sec. 43.
Undor these or similar acts it has been settled in this State that a. privity does exist between an administrator, and an administrator
de bonis non,
for many if not for all purposes.
Tire latter succeeds to all the rights of the intestate in respect to personal property which the administrator has not fully administered. He alone, to the exclusion of creditors and distributee’-, cun recover from the representativo of a deceased administrator, not only the property remaining in specie, (which is the general law,) but also the value of the assets which the ad ministrator has wasted or misapplied.
Ferebee
v.
Baxter,
12 Ired. 64;
Cannon
v.
Jenkins,
1 Dev. Eq. 422, and numerous other cases to the same effect. The acts cited seem especially to apply to cases in which the death of a representative party occurs before a final judgment or decree. But it is held in England upon the equity of a statute similar to ours, except that it is confined to plaintiffs, that an administrator
de bonis non
may revive a decree obtained by an administrator.
Pew
v.
Cudmore,
3 ch. R. 33. See also
Bœtner
v.
Kuhln,
6 Jones 60. And the privity is held to exist in this State, so that an administrator
de bonis non
can recover upon a bond taken payable to the administrator.
Eure
v.
Eure,
3 Dev. 206.
It is a reasonable inference that if the act cited makes successive personal representatives privies when they are plaintiff’s, it does so also, when they are defendants. If an administrator
de bonis non
can enforce a judgment recovered by an
administrator, as by
Eure
v.
Eure
and
Pew
v. Cudmore, he can, is there any reason why a judgment against an administrator shall not be evidence, (whether conclusive or otherwise,) against the administrator
de bonis non ¶
The only difficulty in the answer, we conceive, consists in this, that there is no direct authority that we know of, to the effect that it is, and thceis respectable authority apparently to the contrary.
In Bigelow on Estoppels, p. 19, it is said, “ An administrator
de bonis
non, is not in privity with the (first) representative of a deceased testator: and therefore a judgment against the former is no evidence of debt against the latter. Nor is an administrator
de bonis non
in privity with his predecessor the executor.”
The authorities cited for this
Thomas
v. Sterns, 33 Ala. 131, ond
Coleman
v. McMurdo, 5 Rand. 91, are not accessible to us. Probably they depend upon the statutes of the particular States. At. all events being on a matter of local and statutory law, we do not consider them binding on us.
We think there is such a privity created by statute between an administrator and an administrator
de bonis non.
as makes a judgment against the former,
evidence
against the latter.
2. Is the evidence
prima facie
only, or conclusive? The answer is not altogether free from difficulty. Some inconvenience may attend a general rule either way. If the judgment be held only
'prima facie
evidence, the defendant' may dispute the items of an account, or the
factum
of a bond, and put the plaintiff to proof of them a second time,
after
the matters have been once decided by a competent Court, after a careful and faithful defence by the administrator. If held conclusive in the absence of fraud, it may sometimes happen that by the ignorance or inadvertence of an administrator, the personal estate will be held bound for a debt, to which a good defence is subsequently discovered. There is also an entire want of direct authority as far as we know. On the whole we think that the inconvenience and chance of wrong is less by holding
the judgment conclusive, and that both principle and the authorities which have been found are that way.
The same reason which makes the judgment- evidence at all, makes it conclusive, for privies are concluded where the parties to whom they are in privity are. To hold it less than con* elusive, would be to deny all effect to the privity.
Confessedly there is no privity between the administrator and the heir. But it is held that a judgment against the administrator is
prima facie
evidence against the heir.
Alston
v.
Mumford,
1 Brock. C. C. R., 266;
Harvey
v.
Wilde,
L. R. 14 Eq. 438. And in
Steele
v.
Lineberger,
59 Pa. 308, it is said that such a judgment is conclusive as to the personalty, and.
prima facie
evidence against the heir. In
Smith
v. Downey,, 3 Ired. 268, a residuary legatee sought to falsify an item in the account of the defendant who was administrator
cum test,, annex.,
by which he claimed credit as having paid a judgment recovered against him by a creditor of the testator, on the’ ground that the judgment was fraudulent and collusive. The defendant denied the fraud, and also relied on the judgment as an estoppel as to the existence of the debt. RuefiN, C. J.,. says, “ Certainly an administrator who honestly defended a suit is to be protected by the judgment obtained, against him
per testes
and m
invito,
although the claim on which the judgment was founded may have been unjust.”
3. Can the judgment be impeached by the administrator
de bonis non,
for fraud between the plaintiff and. the administra? tor in obtaining it ?
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RodMAN, J.
Three questions are presented in this case:
1. Can a plaintiff who has recovered judgment against an administrator, revive or enforce the judgment after the death of the administrator, against an administrator
de bonis non.
At common law there was no privity between an administrator and an administrator
de bonis non. Ellison
v.
An
drews, 12 Ired. 190. If an administrator recovered a judgment and died before collecting it, it became ineffectual. The ad
ministrator
de bonis non
could not sue on it, or avail himself of it in any way, though he might sue on the original cause of action.
Grant v. Chamberlain,
4 Mass. 611;
Beall
v.
New Mexico,
16 Wall. (U. S.) 534.
The inconvenience has been remedied by legislation more or less fully in England, and probably in most of the American States. In this Slate the Revised Code, chap. Í, sec. 4, enacts that no 'Nit;-.'?! to which an executor or administrator is plaintiff or
defendant,
shall abate by his death, but it may be revived against the administrator
de bonis non, dec.
Beo also O. O. I’, see. o±, and Rev. Code chap. 46, sec. 43.
Undor these or similar acts it has been settled in this State that a. privity does exist between an administrator, and an administrator
de bonis non,
for many if not for all purposes.
Tire latter succeeds to all the rights of the intestate in respect to personal property which the administrator has not fully administered. He alone, to the exclusion of creditors and distributee’-, cun recover from the representativo of a deceased administrator, not only the property remaining in specie, (which is the general law,) but also the value of the assets which the ad ministrator has wasted or misapplied.
Ferebee
v.
Baxter,
12 Ired. 64;
Cannon
v.
Jenkins,
1 Dev. Eq. 422, and numerous other cases to the same effect. The acts cited seem especially to apply to cases in which the death of a representative party occurs before a final judgment or decree. But it is held in England upon the equity of a statute similar to ours, except that it is confined to plaintiffs, that an administrator
de bonis non
may revive a decree obtained by an administrator.
Pew
v.
Cudmore,
3 ch. R. 33. See also
Bœtner
v.
Kuhln,
6 Jones 60. And the privity is held to exist in this State, so that an administrator
de bonis non
can recover upon a bond taken payable to the administrator.
Eure
v.
Eure,
3 Dev. 206.
It is a reasonable inference that if the act cited makes successive personal representatives privies when they are plaintiff’s, it does so also, when they are defendants. If an administrator
de bonis non
can enforce a judgment recovered by an
administrator, as by
Eure
v.
Eure
and
Pew
v. Cudmore, he can, is there any reason why a judgment against an administrator shall not be evidence, (whether conclusive or otherwise,) against the administrator
de bonis non ¶
The only difficulty in the answer, we conceive, consists in this, that there is no direct authority that we know of, to the effect that it is, and thceis respectable authority apparently to the contrary.
In Bigelow on Estoppels, p. 19, it is said, “ An administrator
de bonis
non, is not in privity with the (first) representative of a deceased testator: and therefore a judgment against the former is no evidence of debt against the latter. Nor is an administrator
de bonis non
in privity with his predecessor the executor.”
The authorities cited for this
Thomas
v. Sterns, 33 Ala. 131, ond
Coleman
v. McMurdo, 5 Rand. 91, are not accessible to us. Probably they depend upon the statutes of the particular States. At. all events being on a matter of local and statutory law, we do not consider them binding on us.
We think there is such a privity created by statute between an administrator and an administrator
de bonis non.
as makes a judgment against the former,
evidence
against the latter.
2. Is the evidence
prima facie
only, or conclusive? The answer is not altogether free from difficulty. Some inconvenience may attend a general rule either way. If the judgment be held only
'prima facie
evidence, the defendant' may dispute the items of an account, or the
factum
of a bond, and put the plaintiff to proof of them a second time,
after
the matters have been once decided by a competent Court, after a careful and faithful defence by the administrator. If held conclusive in the absence of fraud, it may sometimes happen that by the ignorance or inadvertence of an administrator, the personal estate will be held bound for a debt, to which a good defence is subsequently discovered. There is also an entire want of direct authority as far as we know. On the whole we think that the inconvenience and chance of wrong is less by holding
the judgment conclusive, and that both principle and the authorities which have been found are that way.
The same reason which makes the judgment- evidence at all, makes it conclusive, for privies are concluded where the parties to whom they are in privity are. To hold it less than con* elusive, would be to deny all effect to the privity.
Confessedly there is no privity between the administrator and the heir. But it is held that a judgment against the administrator is
prima facie
evidence against the heir.
Alston
v.
Mumford,
1 Brock. C. C. R., 266;
Harvey
v.
Wilde,
L. R. 14 Eq. 438. And in
Steele
v.
Lineberger,
59 Pa. 308, it is said that such a judgment is conclusive as to the personalty, and.
prima facie
evidence against the heir. In
Smith
v. Downey,, 3 Ired. 268, a residuary legatee sought to falsify an item in the account of the defendant who was administrator
cum test,, annex.,
by which he claimed credit as having paid a judgment recovered against him by a creditor of the testator, on the’ ground that the judgment was fraudulent and collusive. The defendant denied the fraud, and also relied on the judgment as an estoppel as to the existence of the debt. RuefiN, C. J.,. says, “ Certainly an administrator who honestly defended a suit is to be protected by the judgment obtained, against him
per testes
and m
invito,
although the claim on which the judgment was founded may have been unjust.”
3. Can the judgment be impeached by the administrator
de bonis non,
for fraud between the plaintiff and. the administra? tor in obtaining it ?
Judgments are not exempt from the general principle that; all transactions may be avoided for fraud. Stoey in enumerating the cases in which Courts of Equity will give relief, mentions cases “of fraud in verdicts, judgments, decrees, and other judicial proceedings.” Story Eq. Jur... sec. 252;
Earl of Brandon
v. Beecher, 3 Cl. and Fin. H. L. 479. The case of.
Smith
y.
Downey,
is to the same effect. In the present case both administrators were trustees for the next of kin, andi although the statute creates a privity between them for certain
purposes of convenience, it does not extend to protect any fraud.
The rule that parties and privies cannot
collaterally
impeach a judgment has no application. Formerly relief was generally .to be sought by bill in equity. In
Jarman
v.
Saunders,
64 N. C. 367, it was held that it should be done by a motion in 'the cause. There is no reason why it shall not be done upon ¿an answer to the plaintiff’s action to revive his j ndgment.
In all these ways the impeachment is direct, and the question oi fraud is directly presented.
J ndgment reversed and case remanded to be proceeded in .according to this opinion.
Per CurxaM. Judgment reversed.