52 Mass. 445 | Mass. | 1846
The plaintiff sues as administrator of the estate of Joseph Gallup, promisee in the note declared on, who lived and died in the State of Connecticut. The only question, upon the statement of facts, is, whether the action is barred by the statute of limitations. It appears, by a comparison of dates, that the promisor lived a little more than three years after the date of the note, which was payable on demand. Clearly, then, the action of the promisee was not barred by the six years’ limitation in Rev. Sts. c. 120, § 1; and by $ 10, the action may be commenced by the administrator of the deceased, at any time within two years after the grant of letters of administration.
This must be construed to be within two years of the grant of letters of administration, such as would warrant an administrator to sue. Even under the old statute of limitations, 21 Jac. I. c. 16, it was held that on a note which became due to a party after his decease, no right of action accrued till administration granted ; till there was a party capable oí suing; and that the statute of limitations began to run at that time. Murray v. East India Co. 5 Barn. & Ald. 204. The administrator appointed in Connecticut had no authority to sue here. No right of action accrued to him. Goodwin v. Jones, 3 Mass. 514. Pond v. Makepeace, 2 Met. 114. The present plaintiff was the first administrator appointed in this Commonwealth, and he commenced this suit within two years after his appointment. The case is therefore precisely within the provisions of the Rev. Sts. c. 120, § 10, already cited. The judge of probate had authority to appoint an
But it is said, that upon this construction of the statute, it is possible that a suit may be brought twenty eight years after the note becomes due. Be it so. The statute of limitations cannot be extended by equity. It is a rule of positive law, and the only question, in each particular case, is, whether it is within the statute. If it is, it is barred; otherwise, it is not. The same consequence would have followed, had there been no statute of limitations.
It may, however, be said, if the statute needs an apology, that if, in the supposed possible case, an action may be brought twenty eight years after a cause of action accrues, this results from a peculiar combination of circumstances, which will rarely happen, and that the statute, applied practically to the generality of cases as they occur, will work well, and do good justice.
Judgment for the plaintiff'.