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JONATHAN PHILBRICK, adm'r. vs. MOSES HAZEN, Jun.
October 1, 1824 - Opinion
Case records
Open case page| Date | Record Text | Type | Party | |
|---|---|---|---|---|
| October 1, 1824 | JONATHAN PHILBRICK, adm'r. vs. MOSES HAZEN, Jun. Current page | Opinion | Supreme Court | Reporter |
JONATHAN PHILBRICK, adm'r. vs. MOSES HAZEN, Jun.
When a suit is brought by a person as administrator, before ne obtains letters of administration, and administration is afterwards gianted to him, the defendant* in order to avail himself of this matter, may crave oyer of the letters of administration and demur-
Assumpsit. The defendant craved oyer of the plaintifl’s letters of administration, by which it appeared, that he was not administrator at the time when he commenced this suit, and then demurred, and the plaintiff joined in demurrer.
Heithl, lor the plaintiff.
Story, for the defendant.
By Ike court.
When a plaintiff sues as administrator, when in fact he was not administrator until after the commencement of the suit, the correct mode of pleading this matter seems not to be well settled. In Marker vs. Moreland (2 Levintz 19,) the defendant in such a case craved oyer of the letters of administration, and then pleaded the matter in abatement after an imparlance. The court held the plea to be bad, but abated the writ, because it appeared that the action was prematurely commenced. When an action is prematurely brought, it may be pleaded in abatement, and is also good ground of demurrer,or of a nonsuit. 1 Chitty’s Pl. 442.—4 Mass. Rep. 479.
We entertain no doubt, that the mode of pleading, adopted in this case, is correct, and that there must be
Judgment for the defendant.