Wilkinson County MsArchives Court.....Smith, Prestwood 1839
************************************************
Copyright.  All rights reserved.
http://usgwarchives.net/copyright.htm
http://usgwarchives.net/ms/msfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines ddhaines@gmail.com December 8, 2005, 9:29 am

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Smith v. Smith's Adm’r.

pages 216-218

A motion in the circuit court, made in time, against an administrator to 
refund money, which has been paid as security for the intestate, and an 
appearance and resistance of the motion by the administrator, is a sufficient 
presentation of the claim in compliance with the 115th section of the Orphans' 
Court law.

Judgment on a claim against an administrator in his representative capacity, 
is sufficient authentication of such claim within the meaning of the 90th 
section of the Orphans' Court law.

ERROR to the circuit court of Wilkinson county.

Grayson, for the appellant.
Henderson, contra.

Mr. Justice TROTTER delivered the opinion of the court.

This is a writ of error to the circuit court of Wilkinson county. The 
plaintiff instituted all action of assumpsit in the court below, for the 
recovery of the sum of 2434 dollars and 63 cents, which he had paid for the 
defendant's intestate, Prestwood Smith, as his surety. On the trial, the 
principal defence relied upon, was, that the claim was not presented to 
defendant, within the time limited by the statute. In answer to this 
objection, the plaintiff offered in evidence to the jury certain proceedings, 
which were had on a motion against the defendant in the same court, at a 
former term, for judgment for the claim in question. This motion was founded 
upon the 160th section of the circuit court law, which authorises the circuit 
courts to render judgment on motion, for any sum which any person may have 
been compelled to pay for another as his security, and it may be had against 
the principal, or his executors, or administrators. The notice of this motion 
was acknowledged by the defendant, on the 6th day of May, 1830, which is 
within the time for presenting claims against an administrator. Notice for 
this purpose, having been published by the defendant on the 11th day of 
November, 1828. There was judgment for the plaintiff on this motion, which was 
afterwards reversed, by the Court of Errors and Appeals.

The judge below refused to permit this notice, or the subsequent proceedings 
to go to the jury, and in this, the principal error is assigned. The only 
ground, upon which it could be insisted that the notice in this case was not a 
presentation of the claim within the meaning of the 115th section of the 
orphans’ court law, is, that the same was not authenticated according to the 
90th section of the same law. Surely a presentation of the claim to the 
administrator, at a in time within the eighteen months as required by the act, 
is made within the letter and spirit of the law, by a notice containing a full 
and accurate description of the debt, and that judgment wil1 be demanded in 
the proper tribunals. The object of the statute is, to place it in the power 
of the administrator to ascertain the situation of the estate, so as to be 
able to report upon its solvency, or insolvency. The notice in this case, was 
calculated to answer this purpose, and was, we conceive, a legal presentation 
of the demand. We are at a loss indeed to conceive in what other better mode, 
the demand could have been made. This evidence was, therefore, improperly 
rejected by the court below, unless the provisions of the 90th section of the 
orphans' court law, make it bad. That section provides, that no administrator, 
or collector, or executor, shall discharge any claim against the deceased 
otherwise, than at his own risk, unless the same be first passed by the 
orphans' court granting the administration, or be proved, as after provided. 
The subsequent provisions of the act require, as the voucher in support of a 
claim on open account, the affidavit of the party, that the same is just and 
true as stated, and that no security, or satisfaction for the same, has been 
received. It is insisted, that the defendant, as administrator, was not liable 
to be sued upon this claim because it wanted the voucher, or proof, required 
by the foregoing section of the act. To give this construction to the act 
would, as we conceive, be to make the validity of the claim depend upon 
inferior evidence, contrary to the settled rules of proof. The affidavit 
required, can only serve the administrator as a voucher, upon the final 
settlement of his accounts in the orphans' court; but surely, the judgment of 
a court of competent jurisdiction would be a higher voucher. The act will not 
be construed to intend to deprive the plaintiff of the right to establish his 
claim by regular testimony, in a court of justice. Its only design was, to 
prevent voluntary payments without proof of the correctness of the debt. The 
only effect of the statute is, to make the executor, or administrator, liable 
individually, if he pays the demand without this proof. This cannot be 
construed to impair the validity of the claim, however, nor to subvert the 
fixed rights of the parties. When furnished with the voucher, the 
administrator is protected in the payment, though the claim be unjust. If he 
pays it without the voucher, it is at is own risk, and he will be compelled, 
if required, to establish its justice by proof. This is the only fair 
construction of the law. We are, therefore, of opinion that the proceedings 
which include the notice of the claim, its character, and amount, should have 
been permitted to go to the jury, as evidence of a presentment of the same, 
within the time limited by the statute, and that the provisions of the 90th 
section of the orphans' court law, did not affect the validity of the claim.

Let the judgment be reversed, and a venire de novo awarded.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

File at: http://files.usgwarchives.net/ms/wilkinson/court/smith52wl.txt

This file has been created by a form at http://www.poppet.org/msfiles/

File size: 6.6 Kb