Conant v. Hitt

12 Vt. 285 | Vt. | 1840

The opinion of the court was delivered by

Collamer, J.

—The defendant’s note was dated 13th September, 1831, and due on demand, to the intestate. Administration was taken on the 4th September, 1837. The suit was commenced 18th August, 1838. Had the statute of limitations run ? The statute of limitation runs in six years after the cause of action accrues, and, as a general rule, when the statute commences running, it continues, except in a few cases mentioned in the statute. It is however insisted, that when executors or administrators are appointed, the action accrues to them only on their appointment. If this be so the statute would not run until • six years after the appointment, and, by consequence, probably, those claims on which it had run in the life time of the deceased, would not be barred.

It is also insisted, that, inasmuch as it has been held^that the death of the debtor suspends the running of the statute until he has an executor or administrator, who can be sued, so, by analogy, the death of the creditor should also suspend its operation until the administrator or executor is appointed and has reasonable time to sue. There is, however, a clear difference in these cases. When a debtor dies, his creditor has no powers either to sue or procure"an executor or administrator to be appointed, whom he can pursue. When a creditor dies, those who come in his right can take administration and sue when they please. In the present case, if we' should adopt the principle for which the plaintiff contends, it •would not save his case, as he did not sue until nearly a year after his appointment. We cannot, however, view this as an undecided question. The leading case on this subject is the case of Curry v. Stephenson. That case is reported in Salk. 433 ; Skinner, 535 ; 4 Mod. 376, and Garthew, 335. As reported in Salkeld, it sustains the text of 4 Bacon, 379, that the administrator is to have six years, but as stated in Skinner and in Serg. Williams’ notes to 2 Saund. R. 360, note f., it fully sustains the doctrine, that, when the cause of action a.ecrues to the deceased, in his life-time, the statute commences running, and that this same cause of action continues to his administrator and no new one, and the action must be brought thereon within six years from the time this cause of action accrued, and not after; but if the money was had or the cause of action accrued after the decease, then the statute does not commence running until an administrator is appointed.

This decision, thus early made, settled the construction of the statute, and has ever been followed, in England. The statute -of 21 Ja. 1, was here adopted, in the same words, after such judicial construction, and that construction it must still have.

Judgment affirmed.