I concur in the judgment of affirmance, but upon grounds different from those stated in the opinion of Mr. Justice Burnett.
*562The following opinion was delivered, on re-argument, by Baldwin, J.—Terry, C. J., and Field, J., concurring.
The appellant contends that the case of Ellissen v. Halleck, (6 Cal., 386,) is decisive of this case. There, however, the objection was taken by demurrer. Here the record shows no answer by the administrator. On the contrary, a stipulation appears in the record, signed by the attorney for the plaintiff, and Nathan Porter, “ attorney for the widow,” consenting to a decree upon certain terms; and the decree was entered accordingly. We think it clear that the failure to aver this presentment is not such a fatal objection to the complaint as to make judgment by. default a nullity, or reviewable on appeal. The administrator, it is true, could only be'sued in a given event; but it is, to say the least, very questionable, notwithstanding the ruling in Halleck v. Ellissen, whether this matter be not matter of abatement ; at all events, we feel no hesitation in holding, in cases where the administrator does not set up his privilege by demurrer or answer, but suffers judgment to go by default, that this is a confession that he is properly suable. Wherever the subject-matter of the plea or defence is, that the plaintiff can not maintain any action at any time, whether present or future, in respect of the supposed cause of action, it may, and usually must, be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should, in general, be pleaded in abatement. (1 Chitty Plead., 446.)
The case of J. L. Hunt v. Porter, administrator, decided at the October Term, 1856, sustains this view. The Court say : “ The assignment of error here is not supported by the decision of Ellissen v. Folsom’s Executors, at this term. In that case, there was a demurrer to the declaration, and we held the demurrer to be well taken. In this -case, the objection to the declaration comes too late. It must be presumed, in favor of sustaining the judgment of the District Court, that proof was made of the dis-allowance of the claim by the administrator, which supplied the want of the averment to that effect.”
Judgment affirmed.