Richards v. Child

By the Court. This case cannot be distinguished in any essential particular from those which have been recently decided by this court, involving the interpretation of St. 1861, c. 174, under the provisions of which this bill is brought. Waltham Bank v. Wright, 8 Allen, 121. Jenney v. Wilcox, 9 Allen, 245 Wells v. Child, 12 Allen, 333. It is suggested that the complainant had no actual notice of the appointment of executors, and that in this respect the case differs from those cited. But it is not alleged that he did not know of the death of his debtor or of the time when it took place. We cannot presume that he was ignorant of either fact. In the absence of any averment to the contrary, the fair inference is that the death became seasonably known to the plaintiff. Marlett v. Packman, 3 Allen, 293. Certainly without such averment it does not appear that the failure to prosecute his claim within the time prescribed by law wa* not owing to the plaintiff’s culpable neglect. Bill dismissed.