Philbrick v. Hazen

3 N.H. 120

Opinion

By Ike court.

When a plaintiff sues as administrator, when in fact he was not administrator until after the commencement of the suit, the correct mode of pleading this matter seems not to be well settled. In Marker vs. Moreland (2 Levintz 19,) the defendant in such a case craved oyer of the letters of administration, and then pleaded the matter in abatement after an imparlance. The court held the plea to be bad, but abated the writ, because it appeared that the action was prematurely commenced. When an action is prematurely brought, it may be pleaded in abatement, and is also good ground of demurrer,or of a nonsuit. 1 Chitty’s Pl. 442.—4 Mass. Rep. 479.

We entertain no doubt, that the mode of pleading, adopted in this case, is correct, and that there must be

Judgment for the defendant.