6 N.H. 105 | Superior Court of New Hampshire | 1833
The question in this case, is, whether, on a trial of the cause, under the general issue, the plaintiff was bound to show that the note had been exhibited to the defendant, previous to the commencement of the suit ?
The statute enacts, “ that no action, for any cause of action, against a person deceased, shall be sustained against the executor or administrator, if commenced at any time within one year after the original grant of administration ; nor shall any such action be ever sustained against any executor or administrator, unless the demand was exhibited to the executor or administrator, or one of the executors or administrators sued.” That this clause in the statute has made it necessary, in order to maintain an action against an executor or administrator, to exhibit the demand before the commencement of the suit, is too clear to admit a question. The only question, then, is, whether the want of notice must be pleaded, or whether the defendant may insist upon proof of the exhibition of the demand, under the general issue ?
We are not aware that there has been any settled practice on this subject, in this state. Under the English statutes, which in certain cases require notice of bringing an action to be given to certain persons, a certain time previous to the commencement of the suit, the plaintiff is nonsuited unless he prove the notice. 5 D.
The practice in Pennsylvania seems to be the same. 4 Binney, 20, Mitchell v. Cowgill.
And we are of opinion, that, in this ease, the plaintiff was not entitled to a verdict until he proved that the demand was exhibited to the executor, before the commencement of the suit.
Mew trial granted.
