Coburn v. Harris

Bartol, C. J., delivered the opinion of the Court. This is an action of assumpsit brought by the appellee to recover a sum due for stone sold and delivered to the appellant’s intestate. The suit was originally instituted against George and John Coburn, joint administrators; the latter was discharged from the administration by the Orphans’ Court, under the authority conferred by the Act of 1874, ch. 402, and the case proceeded against the appellant, the declaration having been amended. Two pleas were filed, a demurrer to the first was sustained, and upon the replication to the second plea, issue was joined, and the verdict and judgment being in favor of the plaintiff, the defendant has brought this appeal.

We need not discuss the question upon the demurrer further than to say that the second plea, which follows the words of the Code, correctly presents the question intended to be raised ; while the phraseology of the first is somewhat ambiguous, and therefore not entirely free from objection. But even if the first plea were sufficient in form, no harm was done to the appellant by sustaining the demurrer, inasmuch as the same defence relied on in the first is distinctly presented by the second plea. This defence is based upon section 108, Art. 93 of the Code, which is as follows: “ If a claim be exhibited against an administrator, which he shall think it his duty to dispute or reject, he may retain in his hands assets proportioned to the amount of the claim, which assets shall be liable to other claims, or to be delivered up or distributed in case the claim be not established; and if on any claims exhibited and disputed as aforesaid, the creditor or claimant shall not, within nine months after such dispute or rejection, com ³⁷¹ menee a suit for recovery, the creditor shall be forever barred; and the administrator may plead this section in bar, together with the general issue or other plea proper to bring the merits of the cause to trial; and on any dividend to be made nine months after such dispute or rejection and failure to bring suit, the administrator may proceed to pay or distribute, as if he had not knowledge or notice of such claim, or as if it did not exist, but if the claim be put in suit within the nine months, it may be ascertained by verdict or otherwise, and the Court shall proceed as herein directed, regard being had to the rules herein laid down as to the notice to be given by the administrator, and distribution or payment to be made after such notice.” This is a codification of the Act of 1798, ch. 101, subs ch. 9, sec. 18, which came before the Court of Appeals in Peterson’s Ex'r vs. Ellicott, 9 Md., 52 . This section of the Code was also considered in Zollickoffer, Ex’r vs. Seth, Adm’r, 44 Md., 359 , and in Orndorff, Adm’r vs. Ulz, 48 Md., 299 ; but in neither of those cases was the particular question raised or decided which is now presented.

In 9th Md., Mr. Alexander in his argument contended that this provision was intended only for the protection of the administrator, and that the failure to sue in nine months after the rejection of the claim, did not operate to bar the claim provided there remained assets in the hands of the administrator for the payment of debts. But in Zollickoffer’s Case, 44 Md.,