Wilcox, J.
It is objected that the administrator, who is the plaintiff in this case, cannot maintain trespass for an injury committed upon the chattels of the intestate between the time of his decease and the granting of the letter of administration. This is otherwise.
When an administrator is appointed, his interest relates back- to the death of the intestate, so far as to enable him to recover the personal property belonging to the estate, and damages for all injuries done to it after the death; otherwise no remedy could be had for an injury to or conversion of the personal property during that period. If there are any authorities to the contrary of this, they are not founded on reason or good sense.
If such is the law, the administrator may count in trespass as well as in trover or case. The objection is, that he had no property at the time of the injury, and that goes to all actions as well as trespass. But by relation back, he has a property. By our statute, any person interested may bring an action for injury to property of an estate, and the administrator may, after his appointment, prosecute the action as such. Bev. Stat., ch. 161, sec. 10. This statute enables any one to maintain an action, though he is not administrator when it is commenced.
The proceedings against Bartlett were no bar to this action. That suit was brought by the plaintiff, and for the same injury for which this is brought; but was not, in point of form, an action that could be maintained. It was not decided upon the merits of the case, and the matters here drawn in controversy were not reached in that suit; nor is anything that was decided there sought to be litigated anew in the present action. All that was there settled was, that in “an incidental matter, not affecting the merits of the case now in controversy,” the case made by the plaintiff was defective.
The questions that did arise, and were settled in that case, were properly proved by a copy of the case made by the presiding judge, and sent up to this court for determition. That case was drawn up in the due course of legal proceedings, and was required by law. This court acted upon it, and nothing else was before the court, in rendering the judgment; and it is referred to in the judgment so rendered, as the foundation of the judgment. It is a part of the proceedings in the case, and is very proper evidence, for it is all the record evidence of the grounds of the judgment.
The proceedings against Bartlett, the deputy, are no bar to this action against the sheriff. The plaintiff may still proceed against either of them. It does not appear that the plaintiff, when he brought the first suit, knew that Bartlett acted as a deputy-sheriff; and if he did, we see no reason why, upon the failure of his first suit, he might not bring his new action against either the sheriff or his deputy. The first suit was not brought by the administrator nor even prosecuted by him in such form that it.could be maintained. The defendant in that suit availed himself of the formal defects, by which the action was defeated. It was never duly sanctioned by the administrator in the form required by law, so it cannot be held to bar the administrator of his right.
The defendant is not made a trespasser by relation. He had process against Bicker, and upon that he took the property of another person. That was a trespass, and an act not justified hy his writ; and the only question is, whether the plaintiff is the party who can maintain the action by reason of his interest in the property. Hills v. Hoitt, Strafford, December term, 1846.
The exceptions must all be overruled, and there must be
Judgment on the verdict.