
    William M. Randolph, Judge of Probate of Claiborne County, use of Alexander Cunningham, vs. Ann J. Singleton et al.
    The plea of plane administravit in this state to an action on the bond of an administrator, alleging as a breach the non-payment of a judgment against the administrator, as such, is a good plea.
    There are, however, but few states of fact to which such a plea will be applicable ; the distinction between the different grades of debt in this state being abolished, the plea could only be sustained by proof that all the assets of the estate had been consumed in the payment of preferred debts under our law ; or those which were liens on the property in the intestate’s lifetime.
    A plea to an action on an administrator’s bondyby a judgment creditor, that the administrator’s account of his administration, exhibiting a large indebtedness to him, had been allowed by the probate court, though contested by the judgment creditor, and that this ’balance was still due him over and above all the assets that came to his hands, .is clearly bad ; the suit on the bond is for a devastavit; the probate court cannot by its judgment control the creditor’s right to his action for the maladministration, or in any way create a bar to such action. *"
    
      A declaration on an administrator’s bond, by a judgment creditor, which alleges as a breach the non-payment of the judgment, and the accrual thereby of the action to the plaintiff to recover the penalty of the bond, sufficiently avers that the defendants have not paid the full penalty of the bond; and it seems an averment of' a failure to pay the judgment would have been suf ficient, as the debt sought to be recovered was dehors the bond.
    It is-now the settled practice in this state, that when a demurrer to a plea has been overruled, the judgment of the court, instead of being final, must be respondeas ouster; and when entered final below, it will be reversed and remanded by this court.
    In error from the circuit court of Claiborne county; Hon. George Coalter, judge.
    Wm. M. Randolph, judge of probate of Claiborne county, successor of Nicholas McDougall, for the use of Alexander Cunningham, sued Ann J. Singleton, and D. S. Humphreys and Wm. Bridgers, her sureties, on a bond given by Mrs. Singleton, as administratrix, with the will annexed of John G. Singleton, deceased, dated April 23, 1838, in the penalty of $70,000.
    The declaration alleges that assets to the amount of $12,000 came to the hands of the administratrix, and that ■ Cunningham, on the 5th of June, 1840, recovered a judgment against her for $3560, and $25 costs of suit.
    The breach-assigned is, “ that the administratrix did not well and truly administer, &c. in this, to wit, that the said Ann J, Singleton, administratrix as aforesaid, although often requested so to do, has hitherto wholly failed, neglected, and refused to pay to the said Alexander Cunningham the amount of said judgment and costs of suit. By means whereof, an action hath accrued to the plaintiff to have and recover of and from the said defendants the said sum of seventy thousand dollars, as the sum above demanded, and the sum of one thousand dollars damages for the detention thereof, for the use aforesaid.”
    The defendants ple'aded two pleas.
    “1. .That the said Ann J. Singleton has well and truly administered all the goods, chattels and credits which were of the said John G. Singleton, deceased, at the time of his death, which came into her hands, &c.} and that she had not any goods or chattels or credits which were of the said John G. Singleton, deceased, at the time of his death, in her hands to be administered, nor had on the day of the commencement of this suit, nor ever since; and this the said defendants are ready to verify. Wherefore,” &c.
    
      “2. That at a regular term of the probate court of the'county of Claiborne, begun and holden at the court-house in-said county, on the fourth Monday of June, A. D. 1842, at the county aforesaid, the said Ann J. Singleton, administratrix as aforesaid, made and presented a final account of all her actings and doings in the administration of the estate of the said John G. Singleton, deceased, and of all the assets of the said estate of every description, which came to her hands to be administered. And these defendants further say, that, at the said June term, 1842, of the said probate court of said county, the said Alexander Cunningham came before the said court,,and filed his exceptions to the settlement of the said final account of the said defendant, Ann J. Singleton, administratrix as aforesaid; and such proceedings were afterwards had in said court upon the said final account, and the said final exceptions thereto, that at a regular term of said probate court,' begun and holden on the fourth Monday of April, 1843, at the court-house in said county, to wit, on the 27th day of April, 1843, at the county aforesaid, by the consideration and judgment of the said court, it was ordered, adjudged and decreed that the said final account -of the said Ann J. Singleton, administratrix as aforesaid, as corrected and restated by the said court, showing a balance in'favor of the said Ann J. Singleton, as administratrix as aforesaid of $4135-76, be allowed, confirmed, and'recorded. All which, by the records of the said probate court therein remaining, more fully appears. And so the said defendants in fact say that there remains due from the estate of the said John G. Singleton, deceased, to the said Ann J. Singleton, administratrix as aforesaid, on a final settlement of "her accounts and administration of the said estate, the sum of $4135-76 over and above all the assets of said estate, which came into her hands to,be administered; and this they, the said defendants, are ready to verify by the said record. Wherefore they pray judgment,” &c.
    To these pleas the plaintiff demurred, and assigned six causes of demurrer to the first plea.
    To the second plea, twelve causes of demurrer. ¡
    
    At the June term, 1845, the plaintiff suggested the death of defendant, Humphreys; and on argument, the court overruled the demurrer, and gave final judgment for the defendants.
    The plaintiff sued out this writ of error.
    
      Thrasher and Sillers, .for plaintiff in error,
    Cited Judge of Probate v. Thompson, 2 How. (Miss.) R. 808 ; People v. Dunlop, 13 Johns. R. 437; 1 Chit. PI. 703, 704; 13 Johns. R. 264; H. & H. 409, sec. 80; 2 Wms. Ex. 1105; Bac. Abr. Ex. (L) 1; 7 How. (Miss.) 126, 127; 1 Dana, 514; Black v. Barton, 6 S. & M. 239.
    
      II. T. Ellett and John B. Coleman, for defendants in error,
    Cited H. & H. 376, sec. 38; 2 How. (Miss.) 617;' Smith v. Mclver, 9 Wheat. 532;, Story on Plead. 191; Broom’s Legal Maxims, 135; Duchess of Kingston's Case, in Smith’s Leading Cases; 1 Chit. PL 472 - 480; lb. 325, 331, 358, 359, 532, 635, 647; 2 lb. 151-156; 3 Saund. R. 187 a, note 2; Howard v. Cousins, 7 How. 114; 6 S. & M. 239.
   Mr. Chief Justice Shamcey

delivered the opinion of the court

This suit was brought on an administrator’s bond in favor of a judgment creditor. The declaration avers that goods and chattels, to the value of twelve thousand dollars, came to the hands of the administratrix; that afterwards, to wit, in May, 1840, the plaintiff Cunningham recovered a judgment against her in her capacity of administratrix of John G. Singleton, for the sum of $3560. The breach is that the administratrix has not well and truly administered, but has failed so to do in this, that she has not paid the judgment.

The defendants filed two pleas, to which the plaintiff demurred, and the court overruled the demurrers, and this is relied on as error. The first plea is ple?ie administravit. This plea is founded on the law which, in England, gives a preference to certain creditors of an estate over others, according to the grade of their debts, judgment creditors having a preference over debts of an inferior dignity. This being the case, the administrator is bound to pay the debts according to their grade, and if in doing so the assets are exhausted, he may plead plene admin-istravit when sued for a debt of inferior dignity. By our statute this distinction is abolished, and all debts stand upon an equal footing. If there is not enough to pay the whole, the assets must be equally distributed. This, however, is but the general rule, and it is subject to exceptions. There are preferred debts here, and if an administrator has exhausted the assets in paying such, then he may plead plene administravit. Perhaps there are but few cases that will warrant such a plea, but if there be any case in our law that w.ill warrant it, then it is not necessarily a bad plea, as we cannot know wh'ether proof will sustain it or not. In the case of Dye’s Adm'rs v. Bartlett, 7 How. 224, we decided that a judgment recovered before the death of the intestate was a preferred debt, that a lien had attached, and was not divested or altered so as to place the judgment creditor on a footing with general creditors, and that he was entitled to prior satisfaction. It may be that the admin-istratrix exhausted the assets in paying such debts or other liens, which existed as such in the lifetime of the intestate, and if so she has a right to this plea. Whether the proof will sustain the plea, is another question. Of that we can know nothing; we are only to decide on the legal sufficiency of the plea; according to our law, there are cases in which such a plea is proper, and perhaps it may turn out on proof that this is one of them. The demurrer to this plea was properly overruled.

The second plea is in substance this; -that on the fourth Monday of June, 1842, the administratrix presented her final account of her administration of all the assets of the deceased to the probate court; that Cunningham appeared and contested the settlement; that such proceedings were had thereon; that afterwards, at April term, 1843, it was ordered that said account, showing a balance due the administratrix of $4155, be allowed and confirmed; and concludes by averring that such balance is still due, over and above the assets that came to her hands. This plea was manifestly bad. The fact pleaded constitutes no bar in law to the plaintiff’s right of action on the bond for maladministration. The probate court could not create such a bar by its judgment. A creditor who has been injured, has a legal right to his remedy on the bond. The bond gives a remedy, over which the probate court has no control, and having none, it can enter no judgment which will operate as a bar to an action on the bond. What weight its judgment might be entitled to as evidence on a trial for a devastavit, we need not now determine.

It is insisted that the declaration is defective, inasmuch as it does not allege that the defendants have not paid the full penalty of the bond. It alleges the failure to pay the judgment, and that by means thereof an action hath accrued to the plaintiff to have and recover of defendants the sum of $70,000, which is the penalty. This is equivalent to an averment that the defendants have paid none of the penalty, and is sufficient. Perhaps the averment of a failure to pay the judgment would have been sufficient, as the bond is but inducement to the action. This is a proper conclusion when the debt arises dehors the bond. 1 Chitty, 362.

Judgment reversed and cause remanded.

A petition for a re-argument was filed, on the ground that under the opinion the judgment below should be affirmed; and not reversed, and cause remanded.

The chief justice thereupon delivered this opinion.

A re-argument has been applied for in this case, because the cause was remanded, when it is said the judgment should have been in bar, as the plea of plene administravit was held good on demurrer. By the common law, as well as by the earlier practices of this court, the judgment would have been in bar, but on full consideration a different practice has been established, as best comporting with a fair construction of our statute. See Gwin v. McCarroll, 1 S. & M. 351. The point was not overlooked in this case, but the cause was remanded in view of the practice established by the case cited, which has been followed ever since that decision was made.

The application is therefore refused.  