#### Josiah T. Betts and Samuel Smith, Administrators of Michael Jones, deceased, Appellants, v. Shadrach Bond, Appellee.

APPEAL FROM RANDOLPH.

The act of 1823, regulating administrations and the descent of intestates’ estates, &c., does not apply to the estates of those who died before the passage of the act. Under that law, the judgments obtained against the deceased in his life-time are to be first paid.

Opinion of the Court by

Justice Lockwood.

This was an action of scire facias, brought by Bond, against defendants below, on a judgment obtained against them as administrators, for assets in futuro. The scire facias alleges that assets *288had come to the hands of defendants, sufficient to satisfy the judgment. The defendants set out in their third plea, several judgments rendered against Jones in his life time, that he died on the 28th of November, 1822, and that administration was granted thereon the 3d day of February, 1823, and that goods and chattels to a small amount have come to their hands to be administered, which are insufficient to satisfy those judgments. To this plea Bond demurred, which demurrer was sustained. A great variety of other proceedings were had in the cause, but from the view the court take of the case, it is unnecessary to recite them. The court, on a special verdict which was rendered in the cause, gave judgment that Bond was entitled to a pro rata portion of the assets that had come to the hands of the administrators, with the judgment creditors mentioned in the third plea, and gave judgment accordingly. To reverse which judgment, an appeal was taken to this court.

The legislature of this state, on the 12th of February, 1823, passed an act entitled “ an act regulating administrations and the descent.of intestates’ estates, and for other purposes,”* which act directs the executors or administrators “ of any person dying testate or intestate within this state, who shall not have estate sufficient to pay his or her just debts,” after paying funeral expenses and probate fees, to pay the balance, on the legal demands that then and there be presented, in equal proportion, according to the amount of the several demands, without regard to the nature of said demand, not giving any preference to any debt on account of the instrument of writing on which the same may be found.” The question presented in this case is, whether this act applies to estates, so as to alter the common law disposition of the assets, where the intestate died before its passage ? By the common law, judgments obtained against the intestate before his death are entitled to a preference in payment over other debts. Has this statute altered the law, so as to divest creditors of their right to be paid according to the priority secured to them by the common law ? The language of the statute is only prospective; it applies only to cases of persons dying “testate or intestate,” and not to persons who have theretofore died. It does not appear to have been the intention of the legislature to interfere with rights already vested, but to give a different rule in future. It is also a general rule, that all statutes shall operate prospectively only, and courts never give them a retrospective operation, unless the legislature *289use such language as to leave no doubt that such was their intention, and enlightened courts have ever disputed the power of the legislature to pass retrospective laws which take away vested rights. Dash v. Van Kleck, 7 Johns. Rep., 477. But, as we are clearly of opinion that the legislature did not intend to apply this act to cases where the intestate died before its passage, we think the circuit court erred in sustaining the demurrer to the defendants’ third plea. As this plea goes to the whole merits of the action, and it appearing from the special verdict that the plea was proved on the trial, it is unnecessary to send this cause back to the circuit court. The judgment is reversed, with costs.

Breese, Cowles, Baker, and T. Reynolds, for appellants.

McRoberts, Young, and J. Reynolds, for appellee.

Judgment reversed.

*

Laws of 1823, p. 127.