McKeithan v. . McGill

Ashe, J. It may now be considered as settled law that the act of 1789 is a bar to the action of a creditor when the defendant pleads that he has advertised, paid over the assets to the next of kin, and taken refunding bonds, according to law. Cooper v. Cherry, 8 Jones, 323; Reeves v. Bell, 2 Jones, 254. And so is the act of 1715, if there is a claim, and a *519 person capable of suing, when seven years have elapsed .since the death of the debtor if the debt was due in his lifetime, or since the cause-of action accrued when the débfc became due after his death. Alexander v. Alexander, 1. Car. L. R., 273 ; Godley v. Taylor, 3 Dev., 178; Jones v. Brodie, 3 Mur, 594; Bailey v. Shannonhouse, 1 Dev. Eq., 416. If this were an open question we should concur with the opinion expressed by Chief Justice Ruffin, in the case of Rayner v. Watford, 2 Dev. 338, that the act of 1715 made an absolute bar after the lapse of seven years from.the death of the debtor, but we regard the construction of that aet as settled in the case of Godley v. Taylor, supra., in which case Chief Justice Ruffin, though dissenting, says, “ although my former opinion has been confirmed by reflection, but in future I shall consider myself under equal obligation to hold for law what I understand in conference with my elder brethren to be their opinion that is, if the debt be due at the death of the debtor, claim must be made within seven years from the .death, otherwise both the heir and the executor are discharged ; and if the action arise after the death of the debtor, suit must be brought within seven years from the time the action accrued, or the heir and executor will in that case be discharged; and if the suit be brought against the executor within seven years from the death of the debtor, and the executor hath, at the time of the suit brought, not paid over the assets, he shall answer the demand; but if he hath paid them over, he shall haye the plea of fully administered found for him.” In other cases this court has held that after .seven years, a defendant, relying upon the statute of 1715 as a bar, must aver in his plea that he has paid over the surplus of assets to the University. Bailey y. Shannonhouse, supra. But that must mean when he has assets ; for if he has none, of course, such an averment is not necessary, for .the law does not require any ¿me to do a nugatory act. *520 In our- case there was a debt due at the death of the debtor-,, and a creditor capable of bringing- the action. The statute of limitations (Act of 1715) therefore began to run from the death of the debtor, and no action having been brought, within seven years after the death, the action is barred, unless th.e defendant had assets unadministered in his hands-, when the action was commenced. But this is not made to appear by the pleadings or proofs. It was. incumbent upon the plaintiff to show that the defendant had assets. It is true the defendant in the superior court relied on the acts, of 1715 and 1789, b.ut she had pleaded in the justice’s-court, “no assets” and “fully administered,”'and those pleas do not appear to have been withdrawn. The onus- was then on •the plaintiff to show that the defendant had assets-. “ In 'an action against an executor on plem achninistramt pleaded,, the plaintiff is bound to show affirmatively that the defendant had goods of the testator in hishands unadministered.. 2 Stephens Nisi Prius,. 1915; 2 Greenleaf on Evidence, §¡ 346. The plaintiff- having failed to show that fact or- to take any steps towards its establishment,, we cannot assume that the defendant had assets at the time of the commencement of the action, and must therefore hold that the act of 1715 is a complete bar, without any- averment of payment to. the University. There is no error-. The judgment of the superior court is affirmed. No error. Affirmed.