Slocom v. Wilbour

Per Curiam. The first .question in this case arises upon the defendant’s plea in abatement and the subsequent pleadings setting up a former action pending, which he contends is a bar to the prosecution of this suit. (1) It appears that before commencing this action the plaintiff commenced an action of debt in the name of the Probate Court- against the defendant and the surety upon his bond, alleging certain breaches of the bond' by reason of which they are liable to pay the debt sued for here. We have just decided, upon demurrer to the. declaration in that case, that the suit was prematurely brought. Municipal Court v. Wilbour, 23 R. I. 95. As no recovery can be had in that case, it is no impediment to the prosecution of this. 1 Ency. Pl. & Pr. 766. The plaintiff’s demurrer to the defendant’s rejoinder to the plaintiff’s replication to the plea in abatement is sustained, and the plea in abatement is overruled. (2) The second question is raised, by the defendant’s demurrer to the first count of the declaration, which alleges that the defendant has never filed in the Probate Court a statement either allowiug or denying the validity of her claim. The demurrer objects to this count on the ground that it alleges the neglect of the executor to file a i-ejection of the claim as constituting a promise to pay.it. We do not so construe the declaration. The fact referred to is not a ground of recovery, but by way of inducement explains in what circumstances the action is brought. It is necessary to aver and prove that the claim has been duly presented to the executor. It is proper, whether strictly necessary or not, to allege what action he took or refrained from taking with regard to it.' The presumption would be that he had taken action as the law required him to do. If he did not, it is proper for the plaintiff to aver and prove it — at least to rebut the application of section i of chapter 215, which limits the time in which suit may be brought if a claim is rejected in due form. The material averments of the count are that the testator owed *99 the debt and that the plaintiff presented her claim to the executor in due time. These averments raise substantial issues which, if found in the plaintiff’s favor, will entitle her to judgment. Irving Champlin, for plaintiff. Edward D. Bassett, for defendant. The defendant’s demurrer must be overruled and the defendant required to answer the count.