The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-09-14
mo, 1859.

Rhew Administrator
This suit brought by the plain if in error, on
valid note against the defendant error as the ad-
mlnlsrator de bonus OF George W. Rice deceased.
The defendant answered relying upon a decree OF
insolvency made in relation to the Estate hy the
Court OF Probates of Iallahatchie County al the
stance Of the administrator in chief-the neglect Of
the plaintiff to present the claim in suit 10 the
Commissioner, and the consequent failure Of he
Commissioner 20 embrace the same in his report Of
the claims allowed against the estate and the due
return Of the report and the confirmation Of the
same. 10y the Court.
The plaintiffs replication TO the answer admitted
the alleged facts but averred that the SAID declara-
non or decree of insolvency, procured by fraud,
and setting out the facts, upon which the syerment
Of fraud was based
The defendant demurred to the replication. The
demurrer was overrulcd and leave gwen To- the do
PENDANT 20 plead. Two pleas then filed by the
defendant. The first alleged that the plaintiff was
not entitled to recover for the reason that the claim
sued on not at any time before the institution
OF tins suit, and never had been prohated to
authorize its payment 10y any representative Of the
decedent or by defendant as administrator de bonn
non 81 sad estate or 50 as TO authorize it, collection
10y the plaintiff The second aeged the non-prcsent-
alton Of the claim sued within two wears next af-
ter the grant Of letters Of administration on the de-
cedent> estate and due publication ofnotice thereof
The plaintiff demurred to each OF these pleas which
was oyerrued 10 the first and sustained 70 the
second with leave TO plaintiff, and defendant 70 plead
over
The plaintiff then filed a replication to defendants
first plea. which held bad on demurrer ana the
Court having refused TO allow the plaintiff 10 amend
his replication and the defendant declining TO plead
over. Judgment final entered agant the plaintiff
Hence this Wrlt of : presented.
To make the presentation of clam 10 the executor
! or administrator of decedents estate, good within
the time prescribed by the statute. it necessary
that there should have been previously probate Of
the claim. or an allowance hv the Court Of Pvobates
The object OF the statute IN requiring the probate Of
claims against deceased persons estate an al
loWance Of them 10y the Court Of Prohates rs the
cproca benefits and protection Of the executor or
administrator and those entitled TO the succession.
II was no; designed in any wise affect the validity Of
the clam. IA the hands Of the holder. or his right Of
action thereupon. And this Is the settled Construc
uon Of the statute. How, Miss. Rep rs: How
2l6, So3 H. ~; RaWlns use, &C. ". Polndexter
Kees - Miss Rep. 65l,
1t i manifest therefore that the Court erred in
overriding the demurrer TO the defendants first plea
or answer fled under the lesyeto plead over. Asthe
matter Of defence thereby set up. Was simply that
/ plaintiffs claim had never been probated or allowed
10y the Court of P1ohates within two years after
the grant of letters OF administration and due publl>
cation Of notice thereof by the administrator.
IL j. clear that under the settled doctrine Of this
! Court the decision sustaining the Demurrer 10 de-
PENDANTS second plea filed under leave wa correct
! Miller y. JEFF. College. :. 4 NJ. t5l
| But 1t l. insisted by the defendant in thaS
| conccdng the nvaldity of said plea the demurrer
should nevertheless have been applcd 10 and sus-
tanned a. "a demurrer TO the complaint, which II is
I commended Is fatally detective.
II l. conceded that when a demurrer Is interpoSed
by either party extends back, and attaches 10 the
/ FIRST fatal defect m the peadings: and hence thst
Judgment VIII be gwen against the party guilty OF the
Here 1t is assumed that the complaints insufficient
10 entltle the plaintiff to a Judgment
lst Because Is ayerred that the defendant execu-
Yet demands Judgment de bonus ttNtat0: In other
words the defendant Is sued IN his representative
| character on note alleged 10 have been executed
by him in his individual capacity. And End Because
II y ludlcally known "a this Court thai the plaintiff
Is not corporation; and hence not entitled 10 NAM
| tam any acton.
| LIST. The plo9dings in this were framed under
the act of 9Th of March, 1850 which ahrogated many
of the rules Of special pleading. The instrument on
which the suit was founded, hed with the com
plant. referred TO and expressly made part OF
! IT, The instrument thus being made part Of the
| complaint explains the contradiction or absurdhy'
| which would otherwise exist, and which douhteS IS
would arise from the accidental omission Of single
words the prunoun who" Immediately after the
name Of the defendants interstate. II the oml>sio
which probably occurred IN making ont the transcript
were at all material the defect Is supplied by the m
strument, made part of the complaint, which show
that It executed by the defendants interstate, M
not as alleged by the defendant himself.
| End. The second position - also untenaf le b.
pleading TO the merits of the action, with0 at calln
IN question the character IN which the Pr rty brough
the suit the objection If any was waiv ed Lanier e
! al-Vs, Trigg :, NJ Gal; HemphI vs. Bank Of Ala
hama III II.
But II this was hot the result Of pleading TO tn,
nertS in bar Of the action this Cont is bound Judi
claliy to know that the Branch Rank of the State o
AlahSmS at Mobile. was corr ,orson at least IA
Rs 70 he capable of suing an being sued as such
Atkins Dig. p. IS 70, Sect ms 7kI2
Judgment Reversed, ar a cause remanded.