| Ind. | Dec 27, 1845
— Joseph Cones brought an action of debt against G-eorge L. Morrison and 'William Doench, administrators of the estate of Edward A. Fanning, deceased. The suit was founded on a note executed by the intestate.
The declaration was filed on the sixth of August, 1841. Before any continuance of the suit, to wit, at the August term, 1841, of the Court, and on the ISth of August, 1841, Morrison pleaded in bar as follows: That the plaintiff ought not further to maintain the action against him, because he says that since the commencement of the suit, and before this day, to wit, on the 10th of August, 1841, at, &c., the Probate Court of Hancock county revoked and annulled the letters of administration before that time granted by said Probate Court to said Morrison of the goods and chattels of Edward A. Fanning, deceased; and this he is ready to verify: wherefore he prays judgment if the plaintiff ought further to maintain his action against him. This plea was sworn to by Morrison,
General demurrer to the plea, and the demurrer sustained.
Afterwards, Morrison made default, and judgment was rendered against him for a certain sum, to be levied of the goods of the intestate, &c.
This judgment is erroneous. If a person sued as administrator of an estate be not such administrator, he may plead in bar of the action that he is not administrator. 2 Phill. Ev. 363. So, in the case before us, after the revocation of the letters of administration, Morrison being no longer administrator of Fanning’s estate, might plead the fact of such revocation in bar of the further maintenance of the action.
The plea being filed' before any continuance of the suit, the form, viz., That the plaintiff ought not further, &c., because he_(the defendant) says that since the commencement of the suit, &c., is proper.
— The judgment is reversed with costs. Cause remanded, &c.