
    Smith vs. Brady’s administrators.
    
    The act of 1833, ch. 36, requiring the personal representatives of an insolvent, to distribute the assets rateably amongst his creditors, only applies to cases where the grant of administration, and death of the party, were subsequent tothe passage of the act.
    Brady died intestate, in August, 1833; in the same month the defendants procured letters of administration on his estate. The estate was largely indebted, and a large amount of assets came to the hands of the administrators, but not sufficient to pay all the debts. They had notice of the debts, and knew that the estate was insolvent before they proceeded to administer. And after-wards, and after the passage of the act of Assembly of 1833, ch. 36, and before any disbursements or any distribution of said estate, the defendants, as administrators, returned an inventory and an account of the assets to the county court of Giles county, on the 25th day of November, 1833; and afterwards proceeded to administer by paying off such debts only as were evidenced by judgments and bonds, by which payments they consumed the whole of the assets, leaving all unliquidated demands entirely unpaid; of which last description, the subject of this suit is one. These facts are pleaded, to show a maladministration of the estate, in reply to the plea of fully administered; to which replication there is a general demurrer and joinder, which presents the question, whether the estate should have been administered, and debts paid, according to the act of 1833, ch. 36, or according to the former law on the subject.
    
      Wright & Combs, for plaintiff in error.
    1. The plaintiff in error insists that the act of 1833, ch. 36, has a direct operation in this case by express legislative enactment; and if so, the replication' is good, and the county court erred in sustaining the defendants’ demurrer. See act of 1833, ch. 36.
    
      
      2. He insists that the act of 1883, ch. 36, is the “law of the land,” and must be enforced. See Vanzant vs. Waddell, 2 Yerg. R. 260: Wally’s heirs vs. Nancy Kennedy, 2 Yerg. R. 554: Bank of the State vs. Cooper and others, 2 Yerg. R. 600.
    3. He insists, that the law does not impair the obligation of contracts when applied to this case, and that the legislature have power to pass retrospective laws, so that they do not impair the obligation of contracts. 1 Blac. Com. 160: see, also, Townsend vs. Townsend and others, Peck’s R. 15, 16 and 17, especially, where a direct and sensible construction is put upon that clause of the constitution, which says, “no retrospective law, or law impairing the obligation of contracts, shall be made.”
    The legislature are omnipotent, and have power to do all things not forbidden by the constitution of this State, or of the United States, and the laws in pursuance thereof. 1 Blac. Com. 160: Peck’s R. 1, 2, 3, 4, and on to 21.
    Rivers, for defendant in error.
    This is an action of assumpsit, brought by the plaintiff against the defendants, as the administrators of Patrick H. Brady, deceased, for two thousand three hundred and twenty three pounds of bailed cotton, sold and delivered on the 23d day of March, 1833, by the said plaintiff to the said P. H. Brady. The declaration contains two counts: the inde-bitatus count, and the quantum valibant count.
    To these counts, the defendants pleaded that they, as the administrators of Brady, had fully administered. To this plea, the plaintiff replied, that said P. H. Brady, the said defendants’ intestate, departed this life on the 24th day of August, 1833, intestate, in the county of Giles, where said Brady resided; and that on the 29th day of August, 1833, defendants were appointed and qualified as his administrators; and that said Brady, at the time of his death, had goods and effects to the value of twenty-five thousand dollars, all of which came to de fendants hands to b.e administered;' and 'that the said defendants, on the 25th day of November,' 1833, held the whole estate of said Brady in their hands unadministered; and that the estate of said Brady, at the time of his death and ever afterwards, was insolvent, all of which was well known to the said defendants long before they administered or disposed of said estate or any part thereof; and that said defendants, notwithstanding their knowledge of the insolvency .of Brady’s estate, did, contrary to an act of the General Assembly of the State of Tennessee, passed at Nashville on the 18th day of October, 1833, entitled “an act to regulate and simplify the distribution and division of the estates of persons dying insolvent,” proceed to administer said estate, by paying of all judgments, bonds, notes and sjgned accounts; leaving unpaid, entirely, all creditors whose demands were un-liquidated, accounts of which latter description was the said plaintiff’s demand, by which means the said estate was exhausted, leaving the plaintiff wholly unpaid in his said demand. To which replication the defendants filed a general demurrer, and' the plaintiff thereupon joined in demurrer. The county court sustained the defendants’ demurrer to the plaintiff’s replication, and ordered the defendants to go hence without day. From which judgment of the county court, there was an ap-' peal in the nature of a writ of error by the consent of plaintiff and defendant to this court.
    The defendants in error insist:- 1st. That the act of 1833 can have no bearing on this case, having been passed long subsequent to the death of P. H. Brady, and after the grant of administration to them. ¡,,-.vSee 4 Cowen, 384, People vs. Gibbens: Dash vs. V.aif'Kluck, 7 Johns Rps. 477, and cases there cited: 3 Dallas, 386: 6 Johns, 101: 4 Burrow, 460:2 Cranch,.272, Ogden vs. Blackledge: Officer vs. Young, 5 Yerg. Rep. .
    The general rule is, that no statute is to have a retro-* Spect beyond the time of its commencement. 6 Bacon Abr. 370: 1 Bl. Com. 44, Coke Lit. 360 (A).-
    The act of 1833, ch. 36, was never intended by the legislature to have a retrospective operation.
   Peck, J.

delivered the opinion of the court.

The demurrer filed to the replication, raises the question,- whether the act of 1333, ch. 36, applies to administrations previously granted.

In the case of Officer vs. Young, determined at Sparta, December term, 1833, the court says, that the law at the time of the death, or grant of the administration fixed the interest of the widow, the heirs, and creditors of the •deceased. To settle the interest of all, needed no legislation. The way was plain, and it was for the court to see that the law was pursued.

It is true, the point made in that case was not like the one in this; but nevertheless, the rule must apply. The duty resting upon the administrator had been established, and acting upon oath, he was bound to administer the assets as he has done. There is no necessity to force him from it by giving the act of Assembly a retrospective operation, when the words of the act do not imply that such operation was intended by the framers of the act. Where there are existing rules of law upon one subject, and a law is passed making innovations, certainly, as a general rule, we will take such law as prospective. Until the passage of the act in question, we had administration laws sufficient for our purpose; having been long content with them, affords an argument for us to look forward, only, in the application of the new rules^of administration.

There is another aspect in which the question may be viewed, that we think conclusive of it. If the matter of the replication be good, then an. action would lie upon the administration bond for maladministration of the assets. Could such a suit be maintained? As a general rule, the law in being at the time of making a contract must govern that contract. The law being the source of obligation, must go before the contract, not after it; and the extent of the obligation is defined by the law in being when it is made. Peck’s Rep. 1, Townsend vs. Townsend.

The administrator has given his bond, been qualified, and was in the course of his duty. The law in being when he commenced should be his guide throughout.

Judgment affirmed.  