Corliss Steam Engine Co. v. Schumacher

| Mass. | Mar 15, 1872

WELLS, J.

This suit was not brought “ within two years after the grant of letters of administration,” as allowed by the Gen, Sts. e. 155, § 10. The only question, then, is whether it is “ otherwise barred ” by the provisions of the same chapter. It was not barred by the statutes limiting actions against executors and administrators, for the reason that no notice of appointment had been published.

The plaintiff contends that the general provisions of the Gen. Sts. o. 155, §§ 1, 9, do not bar the claim, because the debtor had left the state before the expiration of six years after the right of action accrued; and, as he never returned, that limitation ceased to run and could never bar the right of action; or, if the appointment of an administrator would be equivalent to a return of the debtor to the jurisdiction, it must be an appointment known to the creditor, or such as would affect the creditor with notice.

The exception in the statute is not, as this argument assumes, to the effect that the period of limitation ceases to' run; but that, in computing that period, after it has once begun to run, there shall be deducted, from the whole interval elapsed, such length- of time as the defendant resided out of the state. Strictly the time so to be deducted is the period from the change of residence to the death of the party, in case of no return. The statute operates by mere lapse of time. The deduction is to be made out affirmatively by the plaintiff. He fails to show residence out of the state, if the party was not living at the time.

But if the whole time from the change of residence to the appointment of the administrator were to be deducted, this claim is barred; unless the failure to give notice prevents the operation of the statute. Treating § 10 of <?. 155 as an extension of the period of limitation under the previous sections, the plaintiff contends that a creditor cannot be barred by an administration of which he has no notice, either actual or constructive.

It is perhaps sufficient for this argument, that the express terms of the statute do not admit of such a qualification. But upon the ground of the general considerations urged by the plaintiff, that a creditor ought not to be affected by a condition of facts of which he is kept in ignorance, the answer is, that, after the statute has once begun to run, the bar becomes complete by lapse of the period of limitation, unless the exception, or exten sion, as defined by the statutes, is made out. And it has been decided that such exception must depend upon the actual facts, although the creditor was kept in ignorance of those facts, and even misled in regard to them. Langdon v. Doud, 10 Allen, 433.

Judgment for the defendant.