
    Robert H. Graham v. Wade H. Vining, Administrator of John J. Vining, Deceased
    Appeal from Red River County.
    [Same case, ante, 639.]
    Under the probate law of 5th of February, 1840, all claims against a succession, which were not presented to the executor or administrator within twelve months from the date of letters testamentary or of administration, are barred.
    When a demurrer to the plaintiff’s cause of action is sustained, and the plaintiff declines asking leave to amend, but chooses to rely on the reversal of the judgment on demurrer, it is evidence that he could not improve and present his cause of action in a better form by an amendment; and in such a case, the affirmance of the judgment on demurrer by the supreme court is as conclusive of the rights litigated, as if the judgment had been on a verdict.
    This was a suit brought by the appellant, who was plaintiff in the court below, to have a promissory note, executed by the defendant’s intestate (and wbicli the defendant had refused to acknowledge), ranked among the acknowledged debts of the succession.
    The defendant demurred to the petition and pleaded specially:
    1st. That the said note had not been presented to him within the time prescribed by law; and
    2d. That a former suit between the same parties and embracing the same subject-matter had been adjudged by the same court in favor of the defendant, and the judgment thereof affirmed on appeal to the supreme court, whereby the plaintiff was forever estopped from again prosecuting the same claim, etc.
    The demurrer wras overruled and the case submitted to the court upon the petition, answer and exhibits. Judgment for defendant.
    The following were the material facts admitted or proven on the trial, viz.:
    That John J. Yining, in his life time, executed the said note to the plaintiff. That he had afterwards died and that the defendant was appointed his administrator in June, 1844, and gave notice by publication on the 5th of July of the same.year, to all persons having claims against the estate to present the same within the time prescribed by law. That the said administration was still open. That the note in question was not presented to the defendant for his acknowledgment or refusal, until the 26th day of July, 1847, and that the record of the former judgment, as set forth in the defendant’s plea, was true, etc.
    Morrill, for appellant.
    The allegations of the defendant’s plea, going to show that the claim was not presented within the time prescribed by law, are insufficient, and the plea is defective in this:
    1st. That it does not allege that “ the time of granting sueh letters of administration ” was stated in the notice.
    2d. That it does not allege that the notice was published “for six uiejeJcs.”
    
    Both of these allegations are material and should have been averred in the plea. Acts of 1840, p. 116, sec. 16; Stephen’s Plead. 378, rule 2; Wiggins v. Lovering, 9 Mo. 262; 1 Iiow. (Miss.) 119; Sm. & Marsh. 362.
    The administration being still open and the business unfinished, the appellant’s claim is protected and provided for by the probate law of 1846, which was in force prior to the institution of this suit, and which repeals all former laws relative to the duties of probate courts and the settlement of successions. The 22d section of said act provides that claims against a succession shall be barred only by the general law of limitations.
    The limitations expressed in the old law (if that must govern) should not bar the plaintiff, because the defendant in his plea of former judgment shows that he then had both Jcnowledge and notice of the claim upon which this suit is founded, which is equivalent to a presentation of the claim. Ellis v. Carlisle, 8 Sm. & Marsh. 556, and authorities there cited.
    
      Martin., for appellee.
    No brief filed.
   Lipscomb, J.

On examining the record in this case it will be found that the subject-matter of the suit was before the court at the last term, in a case between the same parties; and the only difference in the petitions in .the two cases at all material is in this — that in the former petition there was no averment of a presentation to the administrator and of a refusal on his part to acknowledge the claim; whilst in this there is an averment of a presentation to „the defendant, the administrator, and a verbal refusal on the day subsequent to the affirmance of the judgment in favor of the defendant in the former suit. To the present suit the defendant demurred and pleaded the former judgment. The case was submitted without the intervention of a jury, and judgment was given for the defendant, from which the plaintiff appealed.

We believe the judgment of the court below must be affirmed on both grounds of defense offered by the defendant.

In the former suit we ruled that the suit could not be sustained, unless the plaintiff had presented the claim to the administrator within the time prescribed by law, after the date of the administration, and a refusal on his part to allow the claim.

In this suit the presentation appears by the record to have been made long after the expiration of the time limited by law for presenting it. It was therefore barred. See McDougald v. Hadley and Wife, decided at the last term of this court. ■

The second defense was clearly decided correctly by the court below. The former judgment was a complete bar to any other action on the claim between the parties. Where a plaintiff declines asking leave to amend when the defendant’s demurrer to his cause of action is decided against him and chooses to rely on the reversal of the judgment on demurrer, it is evidence that he could not improve and present bis cause of action in a better form by an amendment; and in such a case the judgment on demurrer is as conclusive of the rights litigated as if the judgment had been on a verdict.

The judgment of the court below is therefore affirmed.  