
    Wren’s Administrator, Appellant, v. Span’s Administrator.
    The court, in passing upon a demurrer, should give judgment upon the first error in the pleading, without regard to which party demurs; as where there is a plea filed by a defendant, to which the plaintiff replies, and the defendant demurs to the replication, although the replication may be defective; yet if the plea is also defective, the court will apply the demurrer to the plea, and declare it bad.
    A party availing himself of a defence under a statute of limitation, must plead the statute, and show affirmatively that he comes within its provision. To this rule there is an exception created by statute in favor of executors and administrators, allowing them to give in evidence under the general issue, any special matter of defence; but when an executor or administrator prefers to present his defence by special plea, instead of giving evidence under the general issue, he will be held like all others, to the strictness of pleading.
    When an executor or administrator is sued upon a claim against the testator or intestate, and a special plea in bar of the action is filed, setting up the act of limitation of eighteen months,' the plea will be defective, unless it sets forth the date of letters testamentary or administration, that there was publication within two months after such date, and that such publication was continued for six weeks successively.
    To make the presentation of a claim against a deceased person to his executor or administrator good within the eighteen months prescribed by statute, it is not necessary that there should have been previously a probate of the claim, or an allowance by the probate court. That section of the statute which requires the probate of claims against a deceased person’s estate, or allowance of them by the probate court, is only intended for the reciprocal benefit and protection of the executor or administrator, and distributees or devisees, or those entitled to the estate; and in no manner whatever affects the validity of the claim in the hands of the holder, or his right of action thereupon.
    MINERVA WREN, administratrix of Belfield Wren, deceased, at the time of his death, declared in the circuit court for the county of Warren, in debt, against Susan Span and Charles Span, administrator and administratrix of Robert M. Span, deceased, at the time of his death, upon a writing obligatory or bill single made by the said Robert M. Span, on the 31st day of August, 1832, to the said Belfield Wren then living, by which he promised to pay to the said Belfield Wren the sum of one thousand and ninety-three dollars and fifty-six cents.
    • The defendants by their attorney entered their appearance and pleaded, 1st, a plea of payment, to which plea the plaintiffs replied; upon which there was issue to the country. A second plea was filed as follows: “And for further plea on this behalf, the said defendants say, that the plaintiff, to have .and maintain his aforesaid action thereof against them, ought not, because they say that the claim in the plaintiff’s declaration mentioned, was not proved and examined and allowed and presented to them, the said defendants, within eighteen months after the publication of notice for that purpose by these defendants, in manner and form as by the statute in such case made and provided, it was and is required to be done; and this they, the said defendants, are ready to verify, whereof they pray judgment, &c.”
    To this last plea the plaintiff replied, “ that by reason of any thing in said plea contained, she ought not to be barred from having or maintaining her aforesaid action against the defendants, because she says, the said defendants had notice of the existence of the writing obligatory in the declaration mentioned, and that the same remained unpaid within eighteen months after the publication of notice for that purpose by said defendants: and this, she prays, may be inquired of by the country. ” To this replication the defendants demurred, and for causes of demurrer assigned:
    1. “ The said replication does not reply to the whole of the plea.
    2. “ The averment that the defendants had notice of the existence of the writing obligatory, is insufficient.
    3. “ The replication should have traversed that part of the plea which alleges that the said, claim was not proved, examined and allowed, and presented to the defendants in time prescribed by law.”
    The plaintiff joined in demurrer. The court thereupon passed upon the demurrer, and gave judgment that the same be sustained. The parties then had leave to amend the pleadings.'
    The defendants then filed the following plea. “ And for plea in this behalf, the said defendants by leave of the court first had and obtained according to the form of the statute in such cases made and provided, says, that the said plaintiff ought not to have and maintain his aforesaid action thereof against them, because they say, that heretofore, to wit, at the February term, 1827, of the orphans’ court of Warren county in the state of Mississippi, letters of administration were duly granted by the said court to the defendants on the estate of their intestate, Robert M. Span; and that afterwards, to wit, on the 28th day of February, 1827, the defendants published in a newspaper, printed and published in Vicksburg in the state of Mississippi, a notice requiring all persons having claims against estate of their intestate, to exhibit the same properly authenticated, within the time prescribed by law, or that they would be barred; which said notice, stated the time of the granting of said letters of administration; and the said defendants continued to publish said notice once a week for six weeks in thepaper aforesaid: andthesaid defendants further say,thatthe said plaintiff is a resident of the state of Mississippi; and that her testator was a resident of the state of Mississippi for a long period previous to his death, to wit from the day of the execution of the note in plaintiff’s declaration mentioned until he died; and the defendants farther say, that by the provisions of an act ‘ to reduce into one the several acts, concerning last wills and testaments, the duties of executors, administrators and guardians, and the rights of orphans and other representatives of deceased persons,’ passed November 26, 1821, among other things, it was enacted ‘that no execution, administration, or collection, shall discharge any claim against the deceased, other than at his own risk, unless the same be first passed by the orphans’ court, granting the administration, or unless the said claim be proved according to the following rules, to wit — in case of specialty, bond, note or bill of exchange protested, the vouchers shall be the instrument of writing itself, or a proved copy in case it be lost, with a certificate of the oath or affirmation made as aforesaid, and indorsed on or annexed to the instrument or statement of the claim.’ ‘ That no part of the money intended to be secured by such instrument hath been received, or any security or satisfaction given for the same, except what, if any, is credited,’ and the said defendants further in fact say, that the bond in the plaintiff’s declaration mentioned, was not passed upon by the orphans’ court of Warren county, or proved according to rules aforesaid, and presented to the defendants or either of them, within eighteen months after the publication of notice for that purpose as aforesaid, by the defendants: and this they are readyto verify; wherefore they pray judgment,” &c.
    The plaintiff replied, “ That by reason of any thing in said plea contained she ought not to be barred and precluded from having and maintaining her action, because she says, the said writing obligatory in the declaration mentioned, was presented to said defendants, within eighteen months after publication of notice, made by them, for the creditors of said estate to present their claims'; and that the said defendant within the time aforesaid well knew that the said writing obligatory was outstanding, in the ’ hands of said Belfield Wren in his lifetime, and unpaid; and this she prays may be inquired of by the country.”
    To this replication there was also a demurrer, and the like causes assigned with those upon the demurrer to the replication to the second, plea stated, and the court gave the like judgment sustaining the demurrer, and because the plaintiff did not ask leave to amend, or to file a new replication, the court gave judgment that the plaintiff be barred. of having or maintaining the action aforesaid, and that the defendant go hence, &c. To this judgment a writ of error was taken, and now it was assigned for error, 1st. That the court erred in Sustaining the demurrer to the replication to the second plea. 2d. That the court erred in sustaining the demurrer to the replication to the third or amended plea, and in giving judgment final for the defendant.
    Guión, for plaintiff in error.
    Huston and M‘Neill, contra.
    
   Mr. Justice Smith

delivered the opinion of the court.

It is objected, first, that there was error in the judgment of the court in sustaining the demurrer to the plaintiff’s replication to the second plea. I am clearly of opinion that the replication is not an answer to the plea, and therefore defective, but that the demurrer should have been extended to the first substantial defect in pleading. Gould’s Pleading, chapter 9, sections 36 and 40.

The defect exists in the second plea of defendants, which should have shown the date of the granting of the letters of administration; that there was publication within two months after such date, and that such publication was continued for six weeks successively as by the act directed. The party availing himself of a defence under a statute of limitation, must plead the statute and show affirmatively that he comes within its provisions: There is by statute an exception in favor of executors and administrators, by which it is competent for them to give in evidence under the general issue any special matter of defence. But when an administrator or executor shall prefer to present his defence in the form of a special plea, introducing it under the general issue, he will be held to the strictness of pleading. The first substantial defect existing in the defendant’s plea is, that the judgment of the court would have been respondeat ouster.

The second objection which I shall notice, presents in effect this question, to wit — whether a presentation of a claim against the estate of a deceased person to the executor, without proof or allowance by the probate, as directed in the 90th section of the orphans’ court law, is such a presentation as will prevent the limitation of eighteen months from attaching? The 90th section above referred to does not, as I am disposed to think, in relation to the right to sue, place any restriction or condition on the creditors of deceased persons. Legislatures have ever guarded with great care the rights of minors and the estates of deceased persons. This section would appear tó have this object chiefly in view by laying down a plain rule for the government of the executor in the payment of debts of the deceased. The executor cannot discharge a demand against the estate in his charge, unless it has been proved or allowed by the court, but at his own risk. And if he do, he may be held liable for a misapplication of the assets in his hands. If, on the other hand, he shall, acting in good faith, pay any demands properly proved by affidavit, or allowance, he will in no respect be liable to the representatives of the deceased.

But is this section to be regarded as indicative of the mode in which presentation should be made, of a claim to an executor or an administrator? As before observed this act does not restrict the right of the creditor to sue. This right exists unimpaired up to the end of the eighteen months. ' It is not created "by the act of probating a demand, nor its allowance by the court; the absence of either proof or allowance will not, therefore, take the right of action. It is the want of presentation, which takes away the right of action and bars the claim.

The language of the 115th section, which creates the limitation, does not by any means seem to imply that there is any precedent act required, to make a presentation, by which the administrator is informed of the existence of a debt. The law requiring presentation within eighteen months after the grant of letters, was not intended for the benefit of the estate of a deceased person, so much as to force an early settlement of the estate and to prevent injury to the administrator, and the confusion which might ensue from valid outstanding debts, coming in after settlement.

As the law was made to insure to the executor a knowledge of the outstanding debts, so that he might take his course with the effects of the deceased, which were in his hands; a notice of presentation of the claim against the executor, in such a way as to inform him of its existence, and of the creditor’s right to sue, would be deemed and held amply sufficient. I am, therefore, of the opinion that the amended plea, which avers that the bond declared on by the plaintiff was not passed by the orphans’ court of Warren county or proved according to the rule prescribed by the 9th section of the probate court law, and presented to the defendants or either of them within eighteen months after publication of notice,” is defective in substance. The demurrer of the defendants then ought to have been held as attaching to this defect in the plea which was not cured by the plaintiff’s pleading over. The decision should have been upon the demurrer to the plea, which was substantially defective. The court erred in sustaining the demurrer to the plea although it may have been bad; but should have given a judgment of respondeat ouster against the defendant.

I do not deem it necessary to notice any other question presented by the record; as the judgment of the court below must be reversed for the errors above noticed, and a new trial granted with leave to amend the pleadings.

Note. — Sharkev, C. J., having been of counsel for the plaintiff in the court below, gave no opinion.  