. The presumption of fraud and collusion between the plaintiff in this judgment and Whidby, the administrator, is *315almost conclusive. Indeed, so 'palpably does it appear, that no Court would hesitate to interfere, unless prevented by some stern rule of law. Independently of all other facts, here is an administrator, who is aware that he was appointed for a special purpose, who, after he has left the county, acknowledges service of a writ based upon an open account twenty years old, files no plea, and allows judgment by default. We are not sure that upon this statement of facts, independently of the question of jurisdiction, it would not be the duty of a Court, at the demand of the heirs-at-law, to grant, in equity, a rehearing. But, as the case stands, there is no difficulty.
Under our law, Richmond Superior Court had no jurisdiction of this suit. It is true, Whidby, the administrator, might waive this, but even then the waiver does not bind third persons. The case seems to have turned below upon the idea that Whidby had, by his acknowledgment of service, waived the jurisdiction, or rather had consented to the jurisdiction. Is this so? Section 3250 (old Code) permits the defendant to acknowledge service and waive process. Where does the authority come from to make such an acknowledgment and waiver go further than to supercede the necessity of process and service? Suppose the process attached and the service complete, does not the question of jurisdiction remain? Here was no plea—no appearance. Why have not all the parties all rights, just as though service had been effected and no appearance had? Would not the judgment be void, Whidby living in Fulton?
But it is said that, as Whidby does not now come forward, his securities are powerless, they must take his fate. We do not think so. A Court of Equity has a longer arm than such a theory gives it. Very clearly, if this judgment proceeds, these securities will be liable to pay it. It is an,admission of assets, and if the estate is insolvent, the redress is immediate and direct upon the sureties. If the estate is not insolvent, and the judgment is collected, clearly under the charges in the bill, a fraud and gross maladministration has been practiced by Whidby, and the sureties are liable to the heirs-at-law. True, they, the securities, might wait until proceedings are taken. against them directly by one or the other parties. But they ar,e not compelled so to wait. It is a favorite and an ancient jurisdiction of a Court of Equity to prevent wrong, to stretch forth its powerful hand and stop the wrong doer before he has completed his designs.
Again, it may be years before the proceedings are had against the sureties; time and events may deprive them of their defense. Equity will permit them to come in now, while the witnesses live and the facts are recent, and clear up the cloud, which, in the shape of this judgment, hangs over them.
In any view of it, we think this demurrer ought to have been overruled, and we affirm' the judgment of Judge Gibson.