*263

& J. 270, it was held by the court of appeals of Maryland that the authority conferred by the letters of administration de bonis nɔn, issued under the act of 1798, No. 101, c. 14, § 2, was "to administer all things described in the act of assembly as assets not converted into money, and not distributed, delivered, or retained by the former executor or administrator under the direction of the orphans' court. Such an administrator can only sue for those goods, chattels, and credits which his letters authorize him to administer."

To the same effect are the cases of Sibley v. Williams, 3 Gill & J. 52; Hagthorp v. Neale, 7 Gill & J. 13; and Lemmon v. Hall, 20 Md. 171.

In the case of Ennis v. Smith, 14 How. 400, it was said by this court:

"We understand by the laws of Maryland, as they stood when congress assumed jurisdiction over the District of Columbia, that the property of a deceased person was considered to be administered whenever it was sold or converted into money by the administrator or executor, or in any respect changed from the condition in which the deceased left it. It did not go to the administrator de bonis non unless, on the death of the executor or administrator, it remained in specie or was the same then that it had been when it came to his hands. When the assets have been changed, it is said in Maryland that they have been administered."

But counsel for appellant contend that this rule applies only to the case where an executor or administrator has died, and not to the case where he had been removed; that while the words "not administered, in the commission of an administrator de bonis non, still frequently mean not changed in form, yet, as applied to an administrator de bonis non in place of a living administrator, they have come to mean almost invariably not fully and legally administered, and it is said that this distinction appears in the laws of Maryland in force before the organization of the District of Columbia, and continuing in force until the passage of the act of February 20, 1846, "to enlarge the powers of the several orphans' courts held in and for the District of Columbia." 9 St. 4.

In support of this view we are referred to chapter 101 of the Maryland act of 1798, (2 Kilty, Laws,) by which it is provided, in subchapter 5, § 5, that where letters testamentary have been granted in a case of the discovery of a will, and consequent revocation of letters of administration, it shall be the duty of the administrators to file their accounts and "to deliver to the executor, on demand, all the goods, chattels, and personal estate in their possession belonging to the deceased," and on failure their administration bonds shall be liable to be put in suit; and to subchapter 6, § 13, of the same statute, where it is provided that if an executor or administor shall not file his inventory within 30 days, his letters may be revoked and other letters granted, and thereupon the power of such executor or administrator shall cease, and he shall deliver up to the person obtaining such letters all the property of the deceased in his hands.

These statutes do not tend to support the distinction relied on by plaintiff in error, for, it is well established by the authorities we have cited, that the goods and chattels, personal estate, and property of the deceased are such only as remain unchanged and in specie. When a debt due the deceased is collected, or a chattel of his estate. is sold, the money received becomes the property of the administrator, and he is accountable therefor to those beneficially interested in the estate, and, under the acts referred to, the removed executor or administrator was not bound to turn it over to his successor.

It may be conceded that the words "unadministered assets," as used in statutes, have sometimes been construed to include the proceeds of assets sold or collected and not accounted for or paid over; and that an administrator de bonis non might call a removed administrator to account for such proceeds. But whatever may have been the rule elsewhere upon this question, we think that the provisions of the act of congress of February 20, 1846, to enlarge the power of the several orphans' courts held in and for the District of Columbia, (9 St. 4,) reproduced in sections 975, 976, 977, 978 of the Revised Statutes relating to the District of Columbia, the common law is not changed, and that the statute applies the same rule to the case of a removed, as has been applied to the case of a deceased, executor or administrator.

Section 974 provides that if the security on the bond of an executor or administrator shall become, for any cause, insufficient, the court may order him to give further security. Section 975 provides that if he fails to comply with such order the court may remove him and appoint a new administrator.

Section 976 is as follows:

"The court shall further have power to order and require any assets or estate of the decedent which may remain unadministered to be delivered to the newly-appointed administrator de bonis non, and to enforce a compliance with such order by fine and attachment, or any other legal process."

We think the meaning of this act is plain. When it was passed the words "assets or estate of the decedent which remain unadministered," had a uniform and well-settled meaning in the statute law of Maryland, in force in the District of Columbia, and that meaning, as we have seen, was assets or estate remaining in specie and unchanged in form. The act of 1846 must be construed as using the words. in this well-settled signification unless the contrary appears. But there is not a word in the act of 1846 to indicate that congress intended to give any new or different meaning to these words. Independently of this consideration the meaning of the law is not doubt. ful. It would be an unnatural construction to say that the law required the removed executor or administrator to deliver to his successor assets which had been converted or wasted and which no longer existed, and when there remained only a right to sue for their value. When assets have been turned into money by an executor or admin

istrator, and the money mingled with his own, the assets have ceased to exist as assets or estate of the decedent.

It is the assets and estate of the decedent that are to be delivered. The authorities we have referred to all concur in the proposition that where personal property of an estate under administration has been sold or a debt collected, the proceeds are not property of the decedent, but are the individual property of the executor or administrator, and he is liable to an action for not accounting. When assets have been turned into money by an executor or administrator he is bound to account, not for the identical money received, but for an equal amount, and if he fails to account for and pay over this equal amount he is liable in damages, which are measured by the proceeds of the assets so turned into money. The statute surely cannot mean that the removed administrator must "deliver" damages to his successor.

Our conclusion is therefore that the act of February 20, 1846, does not apply a different rule to the case of an administrator de bonis non succeeding a removed administrator from that applied to one succeeding a deceased administrator, and that no action lies on the bond sued on in this case in favor of the administrator de bonis non to recover money collected by Mrs. Ames from the United States on a claim belonging to the estate of the decedent. On the contrary, the defendant as surety on the bond of the removed administrator is liable only at the suit of creditors, distributees and legatees entitled to the funds.

The next point taken by the plaintiff in error, that the decree of the justice of the supreme court of the district directing the administratrix to pay over the fund to her successor, was conclusive in this suit. We are of opinion that, in making the order referred to, the supreme court of the district exceeded its jurisdiction, and that its order is for that reason void. Its authority, and its sole authority for making the order, is to be found in section 976, above referred to, of the Revised Statutes relating to the District of Columbia: "The court shall have further power to order and require any assets or estate of the decedent which may remain unadministered to be delivered to the newly-appointed administrator de bonis non." It appears from the pleadings in the case that the money ordered to be paid was the proceeds of a debt due the decedent which his administratrix had collected. It was not, therefore, as we have seen, assets or estate of the decedent. It was the property of the removed administrator. The court was therefore without power to direct the payment of the money to the administrator de bonis non. Although a court may have jurisdiction over the parties and the subject-matter, yet if it makes a decree which is not within the powers granted to it by the law of its organization its decree is void. The limitation was well expressed by Mr. Justice SWAYNE in Cornett v. Williams, 20 Wall. 226, when he said: "The jurisdiction having attached in this case, everything done withir the power of that jurisdiction when collaterally questioned is

held conclusive of the rights of the parties unless impeached for fraud."

The case of Bigelow v. Forrest, 9 Wall. 339, is in point. It was an action of ejectment. Bigelow, who was defendant in the court below, relied for title on a sale made under a decree of the United States district court rendered in a proceeding for the confiscation of the premises sued for under the act of July 17, 1862. Referring to this decree, Mr. Justice STRONG, speaking for this court, said: "Doubtless a decree of a court having jurisdiction to make the decree cannot be collaterally impeached, but under the act of congress the district court had no power to order a sale which should confer on the purchaser rights outlasting the life of French Forrest." And the judgment of the court was, that so much of the decree of the district court as was in excess of its powers was void.

In Ex parte Lange, 18 Wall 163, Mr. Justice MILLER, delivering the opinion of the court, after stating that the circuit court had exceeded its authority in pronouncing sentence upon Lange, and that its judgment was therefore void, said:

"It is no answer to this to say that the court had jurisdiction of the person of the prisoner and of the offense under the statute. It by no means follows that these two facts make valid, however erroneous it may be, any judgment the court may render in such case.”

In the case of Windsor v. McVeigh, 93 U. S. 274, Mr. Justice FIELD, after a review of the cases bearing upon this subject, announces their result as follows:

"The doctrine invoked by counsel, that when a court has once acquired jurisdiction it has a right to decide every question which arises in the case, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but is subject to many qualifications in its application. It is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to established modes governing the class to which the case belongs, and does not transcend in the extent or character of its judg ment the law which is applicable to it."

In this case the statute gave the court power, on the removal of an executor or administrator, to order the assets of the decedent, which might remain unadministered, to be delivered to the administrator de bonis non. The court made an order directing the delivery of the proceeds of administered assets. This was beyond the power conferred by the statute, and not within the jurisdiction of the court The order was therefore void.

The result of these views is, that the judgment of the supreme court of the District of Columbia was right, and must be affirmed.

(109 U. S. 268)

MEATH V. BOARD OF MISSISSIPPI LEVER COM'RS.

(November 19, 1883.)

SPECIAL FINDING ASSIGNMENT OF ERROR-MISSISSIPPI CODE, §§ 2163, 2938, 2172-ACTION ON SEALED CONTRACT-LIMITATION.

Where there is a general finding for defendants on all the issues of fact no error can be assigned as to a special finding.

Where a defendant avers that at the commencement of the action the right of action was not in plaintiff, but in his assignee in bankruptcy, and plaintiff replies that the sealed contract upon which the action is based had been bought at the assignee's sale and assigned to B. who, before the commencement of the action, assigned to plaintiff, and upon the trial it is found that the assignment to plaintiff was not made until after the suit was brought and judgment is accordingly entered against plaintiff, such an action is not within the saving clause of section 2163 of the Mississippi Code of 1871, and if seven years have lapsed since the original cause of action accrued, a second suit will be barred by the limitation prescribed in the Code of 1851, applicable to contract under seal.

In Error to the Circuit Court of the United States for the Southern District of Mississippi.

The plaintiff in error, Patrick G. Meath, who was the plaintiff below, brought this suit, on December 21, 1878, against the board of Mississippi levee commissioners. It was founded on a contract in writing, under seal, between Meath and the defendants, dated April 13, 1869, by which Meath covenanted to construct certain levees in the state of Mississippi on or before April 1, 1871, and the defendants covenanted to pay him a specified price per cubic yard in coupon bonds of the board of levee commissioners maturing on. January 1, 1876. The declaration averred that the plaintiff expended large sums of money in the purchase of tools, etc., for the performance of said work, and while he was actually engaged therein, and with ample means to accomplish it, the defendants, on January 10, 1870, without any fault or negligence of plaintiff, ordered and coerced him to desist from work on said levees *until further orders from them; that he was ready, able, and willing to go on with the work, and remained awaiting the orders of defendants until April 1, 1871, and was prevented from resuming the work by the wrongful acts of the defendants. The declaration further averred that "on March 26, 1877, plaintiff brought his suit in the circuit court of the United States for the southern district of Mississippi on said contract, and the same was tried on or about April 5, 1878, and was defeated for matter of form, in this, to-wit, because, though it appeared in the evidence that one Thomas Boyle had purchased, for the sole use and benefit of plaintiff, the said claim under said covenant against defendants at a sale thereof, made by plaintiff's assignee in bankruptcy, the formal assignment made by him to plaintiff had not in fact been executed and delivered until after the bringing of said ac