Dilbone v. Moorer
Supreme Court of Alabama
Writ of Error to the Circuit Court of Lowndes. Before the Hon. N. Cook. Assumpsit by the plaintiff in error. The defendant, among other pleas, pleaded the statute of non-claim. To remove the bar of the statute of non-claim, the plaintiff proved that a suit had been instituted on this demand, against the administrator, within eighteen months after the grant of letters of administration. It also appeared, that the plaintiff in said suit, submitted to a non-suit.
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Writ of Error to the Circuit Court of Lowndes. Before the Hon. N. Cook. Assumpsit by the plaintiff in error. The defendant, among other pleas, pleaded the statute of non-claim. To remove the bar of the statute of non-claim, the plaintiff proved that a suit had been instituted on this demand, against the administrator, within eighteen months after the grant of letters of administration. It also appeared, that the plaintiff in said suit, submitted to a non-suit. The court charged the jury, that this was not a sufficient presentation of the claim, to prevent its being barred by the statute of…
1Opinion of the CourtCollier, C. J.
If the question were res integra, whether the institution of a suit against an administrator, and voluntarily submitting to a non-suit, was a sufficient presentation of the claim, so as to prevent the bar of the statute of non-claim from being successfully pleaded to a subsequent action, we should be inclined to hold the affirmative. But this precise point was ruled otherwise in Bigger v. Hutchings and Smith, 2 Stew. Rep. 448, and this case has been too often recognized to be now departed from. See Garrow v. Carpenter and Hanrick, 1 Port. Rep. 359; Jones’s ex’rs v. Lightfoot, 10 Ala. Rep. 17;…
2Cases cited3 opinions
- Jones' Executors v. LightfootSupreme Court of Alabama · 1846
- Garrow v. CarpenterSupreme Court of Alabama · 1835
- Boggs' Adm'rs v. Br. Bank at MobileSupreme Court of Alabama · 1847
3Cited by1 opinion
- Floyd v. ClaytonSupreme Court of Alabama · 1880