Stevens v. Haskell , 1881 Me. LEXIS 73 ( 1881 )

Walton, J.

No action against an executor or administrator, on a claim against tbe estate, can be maintained, unless such claim is first presented in writing, as required by tbe act of 1872, c. 85, § 12. Like every other fact essential to tbe maintenance of tbe suit, tbe notice, or presentation in writing, must be first averred in tbe declaration, and then proved at the trial. An averment of this fact is as essential as tbe averment of any other fact necessary to maintain tbe action. A declaration against an executor or an administrator upon such a claim, without such an averment, is defective; and defective, not in form merely, but in substance; for tbe averment is one that must be proved as well as made. It is therefore a defect that may be taken advantage of upon general demurrer. Tbe declaration in'this case is, in this particular, defective. Eaton v. Buswell, 69 Maine, 552.

Exceptions sustained. Eeclaration adjudged bad.

Appleton, C.' J., Danporth, Virgin, Peters and Libbey, JJ., concurred.