Two points present themselves for our consideration in this case, which are alleged as grounds of error for a reversal of the judgment below.
1. That the note sued was payable on the contingency of the return of the payee from San Antonio, and that it was not proven on the trial that he had ever returned.
2. That it is not alleged and proven that the claim had ever been presented to the appellant, as administrator of the payor.
In regard to the first point it will be sufficient to say that the note bears a credit of $100, which, added to length of time which had elapsed between the making of the note and the commencement of the suit, was sufficient to raise the presumption that the contingency had happened.
The second point is of more consequence. This court has decided, that under out statute it is necessary to allege and prove that the claim had been presented to the administrator and refused by him, and that this court would reverse judgments in the courts below, where such allegation and proof was wanting. See Cummings, Administrator, v. Jones. This case at bar was commenced before the passage of our statute, and although its provisions are similar to those of Louisiana, yet we feel bound to conform to the Louisiana decisions in cases arising before our statute. In Louisiana it is necessary to present claims to an administrator before suing on them; but unless advantage is taken in the court below of such nonpresentation, the appellate tribunal will not notice the defect. In the case at bar no objection was taken in the court below to the want of an allegation of the presentation and refusal of the claim, and this court will not now set aside the judgment for that reason. This decision is not to be understood as overruling the case of Cummings v. Jones, and the decision in that case will be adhered to.
Let the judgment of the court below be affirmed with costs.
Affirmed.