47 Ala. 429 | Ala. | 1872
As, on the complainant’s final settlement of the estate of Bryan Boroughs in North Carolina, he was charged with, and accounted 'for, the promissbry note of Thomas Boroughs, described in and made an exhibit to the bill of complaint, the note became his property, and thereby he became a creditor of said Thomas Boroughs, and might have maintained an action on the said note in his own name. — Tompkies et al. v. Reynolds, 17 Ala. 109; Waldrop v. Pearson et al., 42 Ala. 636.
After a careful examination, we are satisfied the bill is not without equity; and, although it is not as skilfully framed, nor its statements as full and carefully made as they might be, yet that they are not so defective as to justify its dismissal. •
Many objections are made to the sufficiency of the bill in the brief and argument of appellees’ counsel. We will consider such of them only as it seems to us need to be noticed.
The bill states that said Bryan Boroughs died in.tlie county of Moore, in the State of North Carolina, prior to 1855; and that the complainant was duly appointed his administrator. We think this sufficient, without naming the particular court or authority by which the appointment was made. In a note to the case of Humphries v. Ingledon, 1 Peere Williams, 752, it is said that Lord Keeper North, when he first came into the court of chancery, was of the opinion that a plaintiff administrator ought to show by his bill where he had taken out administration, to the intent the defendant might be informed in what court to look for it, as it might be void if taken out under a wrong jurisdiction; but of late, the general allegation duly talcen
This note is referred to as authority in Story’s Eq. Pl. § 525, and in Daniell’s Pl. and Pr., vol. 1, 364. Therefore, we hold this statement sufficient. It is the province of pleading to state facts, not the evidence necessary to prove them.
The statement here made is, that complainant was duly appointed administrator, &e. If this statement is put in issue, then on the hearing it must be shown the appointment was duly made; that is, made by an authority competent to make it.
The other objections made by appellees’ counsel do not seem to us sufficient to justify the decree of the chancellor in sustaining the demurrer and dismissing the complainant’s bill.
The decree is reversed, and the cause remanded for further proceedings, at the cost of the appellees.