
    Phillips, Appellant, v. Russell’s Administrator, Respondent.
    1. Where a notice is given to an administrator that a demand will be presented for allowance against the intestate’s estate “ at the next term of the county-court of and for N. M. county, to he liolden in the town of N. M., in said county and state, on the 8th day of May, 1854,” the demand may be presented and allowed on the 9th day of May; if so presented and allowed, the administrator being present, the circuit court should not dismiss the cause on appeal on the ground that the demand was not presented on the 8th of -May.
    
      
      Appeal from New Madrid, Circuit Court.
    
    This was an application to the county court of New Madrid county for the allowance of a demand against the estate of Charles H. Russell, deceased. The following notice was given to the administrator : “ State of Missouri, county of New Madrid. To Mr. John Jackson, administrator of the estate of Charles H. Russell, deceased (and who was late of said county and state) : You will please take notice that I have a demand due and owing to me by and against the estate of the said deceased, amounting to in about the sum of two hundred and fifty dollars, for money and property placed and deposited, and for my use and benefit, in the hands of said deceased by William ,B. Etheridge, to be paid by said deceased to me, but which said ■'deceased never paid, but kept and retained the same, and appropriated the same to his own use, contrary to the trust reposed in him. At the next term of the county court of, in and for New Madrid county, in said state, to be holden in the town of New Madrid, in said county and state, on the 8th day of May, I shall proceed to enforce the said claim against said decedent’s estate, and apply for an allowance against said estate for the amount of said claim, at which time and place you can attend and oppose said claim if you see proper. [Signed] Shapley R. Phillips.” The said notice also contained a copy of the demand, as follows : “ The estate of Charles H. Russell, to Shapley R. Phillips, Dr. To money and property placed and deposited in the hands of said Russell by William E. Etheridge, to be paid by said Russell to said Phillips, hut which said Russell never paid to said Phillips, but kept the same and retained it and appropriated it to his own use ; which, with .interest, now amounts to about $250 — two hundred and fifty dollars.”
    ‘On the 9th day of May, 185-1, the said demand was present-ad and allowed “ for one hundred and seventy-five dollars.” '.The administrator was present and resisted its allowance. On appeal to the Circuit Court the defendant moved to dismiss the cause for tbe following reasons: “1st, tbe demand was not presented at tbe time mentioned in tbe notice; 2d, the demand was improperly presented, and tbe action improperly brought; 3d, the proceedings were illegally commenced and should have been dismissed.” This motion was sustained.
    
      Frissell, for appellant.
    
      JV'oell, for respondent.
   Scott, Judge,

delivered tbe opinion of tbe court.

We see no ground for dismissing this cause in the court below. If it was dismissed because tbe notice was to tbe first day of tbe term, and tbe cause was not taken up until tbe next day, tbe order of dismissal was erroneous. It appears that both parties were present when the cause was heard in the county court, and there was a judgment for tbe plaintiff. Tbe cause not being presented tbe first day, it would stand continued from day to day until it was beard. It was in tbe power of the defendant, by an application to tbe court, to have relieved himself of a burthen of attending during tbe whole term. The court might have fixed a day and compelled the plaintiff to reasonable terms, so as to prevent tbe unnecessary harassing of administrators. Tbe statute only requires a notice to the next term of tbe county court; so, by tbe notice given by the plaintiff', tbe defendant was not in a worse condition than if tbe notice bad conformed to tbe words of tbe statute ; for if tbe notice bad been to tbe next term of tbe county court, it will not be maintained that tbe plaintiff might not on any day of tbe term have presented his demand.

We consider tbe notice of tbe demand sufficient. It contained a copy of tbe demand. Section 15 of article 8 of the act concerning administration provides that the county court shall hear and determine all demands in a summary way without tbe form of pleading. Thé nature of tbe claim was described in such a way as enabled tbe defendant to prepare a defence against it.

Judge Ryland concurring,

tbe judgment will be reversed and tbe cause remanded;

Judge Leonard absent.  