Huntington v. Brinckerhoff

By the Court, Nelson, J. The pleadings in this cause seem to have been framed in reference to the provisions of the revised statutes in relation to the statute of limitations, and the abatement of suits by the death of plaintiffs, 2 R. S. 296$ § 26; 299, § 35; 448, § 9 ; but these provisions can have no influence on this case, and we must decide the questions arising upon the pleadings according to the law as it existed previous to those statutes going into effect. 2 R. S. 300, §45. Previous to the enactment above referred to, 2 R. S. 299, § 35, there was no statute in this state giving to the executor or administrator any period of time beyond that allowed to the testator or intestate, within which to bring a new action after an abatement by the death of such testator or intestate. The revised laws, 1 R. L. 186, § 5, after limiting certain actions to be brought within given periods, contain a provision that if in [282] ttby of the actions specified, judgment, shall be given for the plaintiff and the same be reversed for error, or if after a verdict for the plaintiff the judgment shall be arrested, or if in a suit by original, defendant be' outlawed and such outlawry afterwards reversed, the plaintiff his heirs, executors or administrators, as the case shall require, may commence a new action from time to time within one year next after such judgment be reversed, arrested or outlawry reversed, and not after. The whole of this section was taken from 21 Jac. 1, ch. 16, and the decisions under it in England are applicable here. It is settled there by numerous cases, that where a suit has been brought within six years or any other period of limitation, and pending it the plaintiff die, whereby it abates, though the six years have elapsed, the executor or administrator may bring a fresh suit within the equity of the above proviso. 2 Saund. 63, n. A. 1 Selw. N. P. 113, n. 94. Bac. Abr. tit. Lim. 480. 2 Salk. 425. 2 Str. 901. 3 Caines, 197. 2 Archb. Pr. 145. Whiles, 257, note. It would seem from the paragraph in Buller’s N. P. that this equitable constiuction is only applicable where the plaintiff died before the expiration of the six years; but this is undoubtedly an error, as will appear from the authorities above cited. Three of the judges in Jackson v. Horton, 2 Caines, 197, fell into the same error, the point not being material and their attention not particularly turned to it. Ch. J. Kent, p. 205, however, states the law with accuracy. There is no established rule fixing the period of time within which the executor or administrator must bring the suit after the death of the testator or intestate; there being considerable conflict of opinion in the cases both as to the length of time and principles upon which it should be determined. The better opinion is, that where the six years have run at the death of the plaintiff the suit should be commenced by the executor or administrator within a year, in analogy to the statute whence the rule is derived. This is the longest time that would be sanctioned by the court, unless special reasons were shewn to them by pleadings and proofs ¡ and even then, whether the time could be extended in this way, is a point not very clear, but which, however, it is not now necessary to determine. The revised statutes will hereafter regulate it. A [283] question may arise under them, within what time the suit should be commenced by the executor, depending upon the time of the death of the plaintiff. Mr. .Archbold, 2 vol. p. 145, says: “ If the time limited by the statute have not expired before the death of the testator or intestate, the executor or administrator may bring the action at any time within a year after the death; or if the time limited have not expired within the year after the death, at any time before the expiration of such limited time.” This is good sense and I think good law, otherwise a case might happen where the executor or administrator would be obliged to bring the suit before the expiration of the time fixing the limitation of the action. Testing the replication by the above principles it is clearly defective. It shews the suit by the intestate to have been commenced the 5th November, 1819, that he died pending it the 18th October, 1828, that on the 17th November, 1829, letters of administration were granted to the plaintiff, and this suit commenced on the 27th October, 1830. The declaration was filed and rule to plead entered on the 14th July, 1830, but we cannot consider the suit commenced till the declaration was served upon the defendant; 2 R. S. 299, § 38, sub. 1; and independently of this provision such would have been the necessary construction ; p. 347, § 1, sub. 3. The six years then had elapsed before the death of the intestate, and this suit was not commenced within two years thereafter. The replication is therefore bad in substance. There is considerable force in the argument used to maintain the form and substance of the second and third pleas; and upon general principles, they would seem to be unobjectionable. They are drawn upon the idea, that it is essential, not only to plead in bar the general limitation of these actions, but to include therein the year given to the plaintiff under the equitable construction of the proviso, after the death of the intestate, and which is now expressly given by the 2 R. S. 299, § 35; or in other words, as the general act limits the action to six years, and one year is given to the executor or administrator in addition, it is necessary to plead actio non accrevit within the whole period before commencement of suit, [284] to constitute a perfect bar. But it appears to be well settled, exceptions or proviso to the act of 21 Jae. have not va™d the form of the pleading from the cases not within the statute : and that the plaintiff must avail himself of the exceptions in the proviso, when necessary to sustain his action, by way of replication, and so are all the precedents which I have examined. 2 Sound. 64, n. 63, b. 2 Chitiy, 607, 8. 1 Went. 257. 3 id. 203, 4,5. 1 Chitty, 555. 3 Went, index, 20, 21.. The second and third pleas, therefore, are defective in form, if not in substance. Under the revised statutes, the principle upon which these pleas- are professed to be drawn, could not be maintained, if the forms which have been long in use, and which should not be lightly departed from, were not in the way, as by 2 vol. p. 448, § 9, an executor or administrator has six months or more, not exceeding one year, in addition to the one given, p. 299, § 35, wil.hin which to bring the action. The time therefore, after the death of a plaintiff within which the executor or administrator may bring the suit, must in a degree depend upon the circumstances of each particular case, to be shewn by replication, when the statute is pleaded. The plaintiff is entitled to judgment on his demurrer to the second and third pleas, and the defendant to judgment on his demurrer to the plaintiff’s replication; and leave is granted to the respective parties to amend their pleadings.