
    PIPKIN use, &c. vs. HEWLETT, Adm’r.
    1. "Where a suit has been instituted against the decedent in his life-time service on his personal representative of a scire facias, which is voluntarily abandoned, is not such a presentation of the demand as will take-it out of the operation of the statute of non-claim.
    2. The statute on non-claim continues to run notwithstanding the death of the administrator, and the time intervening between that event and- the appointment of a successor is not to be deducted.
    3. A waiver of previous irregularities in making the administrator a party to a suit commenced against his intestate cannot be considered a waiver of the right to insist on the defence of the statute of non-claim.
    Error to the Circuit Court of Madison. Tried before the Hon. Thomas A. Walker.
    This was a proceeding by sci.fa. to revive a suit against the defendant in error as administrator de bonis non of Thomas W. Scott. The defendant relied on the statute of non-claim, and avered the grant of administration to Nancy Scott on the 16th January 1839, and, after her death, to himself on the 4th April 1840, and that the plaintiff’s claim was not presented to either within eighteen months from the first grant of administration. — ■ The plaintiff replied, that on the 22d July 1839, a sci.fa. issued to Mary Scott, but was served on Nancy Scott, the administratrix ; that on discovering the misnomer, the mistake was suggested to the court, and an alias awarded, which issued and was returned non est; and that on the 31st August 1840, this sci.fa. issued and was served on the defendant. He also set up an agreement between the parties at October term 1840, whicli recites that “the parties came by their attorneys, and it is agreed by the parties that all previous errors relative to the revival of this cause are waived, and that a suggestion of the death of Nancy Scott be now considered as regularly suggested, and that a sci. fa. issue against Thomas H. Hewlett, administrator of Thomas W. Scott, deceased.” The defendant demurred to the replication, and the court sustained his demurrer, which is the error now assigned.
    Clay & Clay, for plaintiff:
    I.Defendant’s plea of non-claim is defective:
    1. Because it contradicts the record in saying letters tesla~ mentary were issued to Nancy Scott.
    2. Because it does not show the day on which Nancy Scott died, and leaves uncertain what time intervened between the death of Nancy Scott and appointment of present defendant as executor or administrator; which time should be deducted in estimating eighteen months from the grant of letters to the presentment, of the cause of action to the present administrator. Plea of statute of non-claim must be specially pleaded. Mardis’ Adm’rs v. Smith, 2 Ala. 382.
    3. Because it appears by the record and process on file, that a sci. fa. was served on Thomas H. Hewlett as administrator, on 31st August 1840, and at October term 1840 the parties came by their attorneys and agreed to waive all yjrevious errors, and that another sci. fa. should issue against defendant as administrator, &c. Hence defendant is estopped to plead that he is executor, and sstopped from denying service of the first sci.fa. as well as from alleging any previous error in said process.— Ex’rs of Sankey v. Heirs of Sankey, 12 Ala. 607. ■> ^
    4. Because the plea does not show that eighteen months had elapsed from the granting of letters to Nancy Scott to the presentment of the claim to this defendant — excluding the time between her death and Hewlett’s appointment. — 1 Stew. 254; 1 Wheat. Selw. N. P. 147-8.
    II. The court erred in sustaining the demurrer to plaintiff’s replication. Nancy Scott, the real administratrix, was served with notice both of the existence of the claim and that she was looked to to pay it, by the service of sci.fa., although it was directed to Mary Scott. — Hallett & Walker v. Br. Bank at Mobile, 12 Ala. 195; Posey & Coffee, ex’rs, v. The Decatur Bank, ib. 814.
    Robinson, for defendant in error:
    The facts- bring the case within the following cases: — Jones’ Ex’ts v. Lightfoot, 10 Ala. 17 ; Decatur Bank v. Donelson’s Adm’r, 12 Ala. 741; Lowe’s Adm’r v. Jones, 15 Ala. 545.
    The replication to the plea was insufficient. The facts relied upon do not prevent the bar of the statute. — Bigger’s Adm’r v. Hutchings & Smith, 2 Stew. Rep. 445; Boggs, adm’r, v. Mobile Bank, 10 Ala. 970.
   DARGAN, C. J.

It is too well settled by the decisions of this court to be now controverted, that the mere knowledge on the part of an executor or administrator of the existence of a claim or debt against the estate he represents is not sufficient to supersede the necessity of a presentation of the claim to him. Yet it is equally well settled, that the commencement of a suit against him and the service of the writ, or the service of a scire facias to make him a party to a suit pending against the decedent at his death, within eighteen months from the grant of letters testamentary or of administration, is a sufficient presentation within the intent and meaning of the act. — Jones v. Lightfoot, 10 Ala. 17; Boggs, adm’r, v. The Br. Bank at Mobile, ib. 970; Hallett & Walker v. Br. Bank at Mobile, 12 Ala. 193. But in the case of Bigger’s Adm’r v. Hutchings et al., 2 Stewart 445, this court held that if a plaintiff took a non-suit after the service of the writ, then the service could not be considered a sufficient presentation of the claim. In the subsequent case of Garrow v. Carpenter & Hanrick, 1 Porter 359, this court disapproved of the reasoning in the case of Bigger’s Adm’r v. Hutchings et al., yet admitted that they were willing to adhere to the decisions, •limited to the precise point that was presented for the consideration of the court, and this authority, thus limited, has ever since been acquiesced in. Applying the principle of this decision to the case at bar, there is no error; for the record shows that a scire facias was issued against Mary Scott as the administratrix of Thomas W. Scott, which was executed on Nancy Scott, and although Nancy Scott was the administratrix, and there was a mere misnomer in the sci.fa., the plaintiff in error did not proceed on .this writ, but suggested the mistake and prayed a sci. fá. against the administratrix by her proper name. This scire facias was never executed, nor were any further proceedings ever had on the first writ in which she was named Mary. We must therefore hold that the first scire facias was voluntarily abandoned by the plaintiff, and its service not a sufficient presentation of the claim.

2. It is however urged that the plea is insufficient,.because it does not show that eighteen months had elapsed from the timé of the-grant of the letters in chief to Nancy Scott until-the service of the scire facias on the defendant, deducting the time that intervened between the death of the administratrix and the appointment of the present defendant. The plea shows that Nancy Scott was appointed administratrix on the 16th day of January 1839, and that the claim was not presented either to her or to the defendant within eighteen months thereafter. This •is a sufficient bar. In .the case of Lowe’s, Adm’r v. Jones, 15 Ala. 445, we held that the statute of non-claim'continued to run, notwithstanding the death of the administrator, and that the time intervening between the death of an administrator in chief and an appointment of an administrator de bonis non was not to be deducted in computing the bar! It may however be observed, ■that even if the law was as is contended by the plaintiff in error, the plea would be good in form, for if there was-any intervening time between the death of the administratrix in chief and the appointment of the defendant, which-being deducted would bring the service of the scire facias within' eighteen months from the •time of the original grant of letters of administration, it should have been shown by the replication.

3. -It is again urged that the agreement between the parties entered of record, waiving all errors that had intervened in making the representatives- parties, and which is avered in the replication, estops the defendant from insisting on the non-presentation of the claim. This is not the effect of the agreement. It only waives all irregularities, if any had intervened, in making the representative a party to the suit, but does not deprive him of the right to insist on the non-presentation of the claim, nor does it revive in any manner the original scire.facias which had been abandoned.

We think the demurrer to the plaintiff’s replication was properly sustained, and that there is no error in the record.

Let the judgment be affirmed.  