
    James Jewett versus Betsey Jewett, Administratrix, &c. of Caleb Jewett.
    To an action against an administrator, it is a good plea in bar, that since the commencement of the action against him, he has been removed from office by the judge of probate.
    In this action, which was to recover a debt due from the estate of the defendant’s intestate, the defendant at the Court below pleaded the following plea in bar.
    * “ And now the said Betsey comes and defends, &c., [ * 276 ] when, &c., and protesting that at the time of the service of the original writ in this cause, she had no goods, effects or credits of the said Caleb in her hands to be administered, for plea she prays judgment if the plaintiff his action aforesaid thereof against her ought to have and maintain, because she says that since the commencement of the plaintiff’s action against her, viz. at, &c., on, cfec., at a Probate Court holden before the Hon. S. F., Esq., judge of probate, &c., on the petition of the said James, the said judge ordered and decreed that the said Betsey be discharged and removed from the said appointment and office of administratrix on the estate of the said- Caleb, deceased ; by which said order and decree the said Betsey was removed from her said office of administratrix as aforesaid. Wherefore she prays judgment,” &c.
    To this plea in bar the plaintiff demurred generally, and the defendant joined in demurrer.
    The cause came to this Court by appeal upon these pleadings; and now Whitman, in support of the demurrer, contended,
    1. That the plea should have been in abatement, being in nature of a plea to the person of the defendant. Pleas in bar ought to show, either that the plaintiff never had any cause of action, or if he had, that it is discharged by some subsequent matter . But this plea does neither.
    2. If this matter is pleadable in bar, the plea is still insufficient, as the defendant does not show that she has fully administered the goods in her hands. If she has not, she was authorized and obliged to retain sufficient to pay debts for which actions had been commenced against her. If she had pleaded plena administravit, the plaintiff would have replied waste, and have had judgment de bonis propriis.
    
    [ * 277 ] * 3. This action being commenced before the defendant’s removal, and being good when commenced, the plaintiff relies that she is still bound to answer it, and cannot avoid by pleading this matter, which has arisen wholly from her own misconduct.
    
      Potter, for the defendant.
    This matter is well pleaded in bar, for it shows the plaintiff to have no cause of action against the defendant, and that he never can have. Ne ungues executor is a good plea in bar, and this is in effect the same thing .
    The defendant is liable to her successor for all the effects in her hands at the time of her removal, and if she were to pay this demand of the plaintiffs, she must still pay it again to the new administrator. The plaintiff will therefore lose nothing by failing in this suit, since the effects will still be liable to his action in the hands of the new administrator .
    
      
      
        Tidd’s Practice, K. B. 590.
    
    
      
      
        Bac. Abr. Abatement, L.
      
    
    
      
      
        Com. Dig. Title Pleader, 2. D. 7
    
   The action was continued nisi, and the opinion of the Court was delivered at the following September term at Lenox, by

Parsons, C. J.

By the statute of 1783, c. 24. 4 19., the judge of probate is authorized, in certain cases there mentioned, to remove an administrator from his office, although he has been duly appointed.

On the decease of Caleb Jewett, the defendant was duly appointed administratrix on his goods and estate. This action was then sued against her, to recover a debt due from the intestate. Pend ing the action, the judge of probate removed the defendant from the office and trust of administratrix, upon the petition of the plaintiff. Afterwards the defendant pleads this removal in bar of the action ; and to this plea there is a demurrer and joinder.

The plaintiff, to maintain his demurrer, has argued that if the matter of the plea be sufficient, it ought to *have [ * 278 ] been pleaded in abatement, and not in bar ; and that if pleaded either in bar or abatement, it ought to contain an allegation that she had fully administered; for as the action was rightly commenced, she might retain sufficient assets against a subsequent ad ministrator.

The general rule is that matters, which show that the plaintiff has no cause of action in any form against the defendant, are properly pleaded in bar. But if the plaintiff has a good cause of action, which can be supported in another writ in another form, the plea then ought to be in abatement.

In the case at bar, if the matter of the plea be good, it shows that the plaintiff has no cause of action against the defendant, either on this or any other writ; it is therefore properly pleadable in bar.

The other objection deserves further consideration. The defendant ought not to be twice charged on account of the plaintiff’s demand ; once in this action, and again by the subsequent administrator. The plaintiff insists that' she will not be twice charged, because she may retain sufficient against the subsequent administrator.

We are inclined to admit that this position is correct at common law. By that law, the assets of the intestate are marshalled according to the nature of the contracts on which the debts are due; and a judgment debt is of the highest nature, and is entitled to thi preference. When, therefore, the action is rightly commenced against an administrator, a subsequent determination of his power, pending the action, shall not defeat it; and if judgment be recovered, there is no inconvenience in the defendant’s paying it, and retaining against his successor; because, whether the debt be reduced to a judgment, either against the defendant or against his successor, having become a judgment debt, it may be satisfied with out injury to the rights of other creditors. And to this point, in Comb, 465., there is a dictum of Lord Holt, that an action [ * 279 ] rightfully commenced against * a special administrator, may be prosecuted against him after the determination of his power, and he may retain sufficient to satisfy the judgment.

But by our laws the rights of creditors are different. No one debt has a priority over another, but are all to be paid pari passu; excepting debts due to the United States, to the commonwealth, and for the charges of the last sickness and funeral of the deceased. And if there are not assets sufficient to pay all the debts, the estate must be represented insolvent, and a pro rata distribution made among the creditors. Whether the estate of the deceased in this case be or be not solvent, does not appear; and perhaps the amount of the debts, and the value of the assets, cannot yet be ascertained. We must, therefore, determine the merits of this plea on general principles.

If the defendant cannot retain sufficient to satisfy the judgment which the plaintiff may recover, the law will not oblige her to satisfy that judgment out of her own estate, unless she has in some way made herself personally liable, which does not now appear. If she can retain, she would suffer no inconvenience. But the other creditors might be injured by allowing her to retain. If the estate is insolvent, the plaintiff will gain an advantage by receiving his whole debt, which will be taken from the fund appropriated to all the creditors, and the residue only will be subject to a pro rata distribution among the remaining creditors. To adjudge the plea bad will then amount to a declaration, that the plaintiff have satisfaction of his judgment, if the estate be insolvent, either out of the estate of the defendant, or out of the fund, in which all the creditors are interested in proportion to their debts.

But an allowance of the plea can in no event be productive of injustice. If the defendant has assets, she must account for them with, and pay them over to the succeeding administrator. [ * 280 ] And if the estate be solvent, * the plaintiff will receive his whole debt; if it be insolvent, he will receive his ratable dividend.

At common law, an executor de son tort may discharge himself of all the effects he has appropriated to the exoneration of the rightful administrator. How far, in this state, he could exonerate himself by paying debts when the estate is insolvent, it is not necessary now to decide. Perhaps so far as his payments had injured the other creditors, he would be adjudged to have made them in his owr wrong.

Considering the manner in which the assets of the deceased are appropriated by our laws, it is our opinion that the plaintiff cannot further prosecute this action against the defendant, and that the defendant’s plea in bar is good.  