The opinion of the Court was by
Tenney J.— Whether the brief statement of the defendant was properly admitted, when objected to by the plaintiff, must be determined by the admissibility of the mattter therein contained in bar of the.action. It is insisted that the contents are in the nature of a dilatory plea, do not go to the merits of the action, and show merely a statute disability, and therefore can be taken advantage of, only in abatement. It is true, that this defence is not a denial, that there was ever a cause of action upon the note in suit, but that the cause which might have existed at one time against the maker, has ceased by his death, and as it now stands against the defendant has no foundation. There are some matters which may be pleaded in bar or abatement, and it is not necessary for us to decide in this case, what would have been the result, had the defendant relied upon the latter, seasonably pleaded. It was not ip *265the power of the defendant to give a better writ, which is ordinarily the true criterion by which to distinguish a plea in abatement from a plea in bar. • I Chitfy’s Pleadings, 434, 445; Evans v. Sievens, 4 D. & E. 227. The plaintiff has not taken the steps, which entitle him to maintain any action against the defendant at this or at any time upon the facts as they now present themselves. The statutes of this State, provide “ that no action brought against an executor or administrator of an estate represented insolvent, shall be sustained, except for debts duo to the State, debts due for taxes, for the deceased’s last sickness and funeral charges.” Laws of Maine, 1821, c. 51, § 25. The same statute has provided that commissioners shall be appointed for the consideration and allowance of claims, and a rejection of such a claim, as the one here presented, by them, is a prerequisite for the maintenance of an action, so long as the estate is apparently insolvent, and may be considered as an element in the cause of action against an administrator. The death of the maker of the note has changed essentially the remedy of the plaintiff. He can resort to his action against the defendant only after having taken the steps which the statute points out. The defendant can be liable in no other way; no cause of action exists against him, if there be wanting any material which the statute requires; and such a want is as fatal to an action against the defendant, as a want of maturity in the note would bo in an action against the maker, were he living.
When an estate has been represented insolvent, and so declared by competent authority, this could be pleaded in bar of a suit against an administrator. Coleman v. Hall, Adm’r, 12 Mass. R. 573. But if other assets should afterwards come to the hands of the administrator, the original claims of creditors would not be discharged by the record of insolvency, if not fully paid, but a further distribution would be decreed. And we do not perceive why a plea in bar, or what is the same thing, a brief statement, may not be introduced in one case with as much propriety as in the other. In an action against one as executor, that he is not such, may be pleaded in abaie*266ment or bar. 5 Com. Dig. Pleading, 2, D, 3 — 7. The authorities cited by the defendant’s counsel, though this question was not distinctly presented to the Court therein, show that the practice sustains the ruling of the presiding Judge.
Nonsuit confirmed.