Clough v. McDaniel

58 N.H. 201

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1877
• Status: Published

Opinion

Bingham, J.

The indorsements were not competent evidence. They were not shown to be in the defendant’s handwriting, or in the handwriting of any one that made them evidence against him. Nor were they verified by payments. Marshall v. Daniels, 18 N. H. 364.

No action can bo sustained against an executor unless the demand was exhibited to him within two years from the original grant of administration, according to Gen. St., c. 179, ss. 2, 3.

The plaintiff must prove this fact affirmatively, in order to recover under the general issue. It is a part of his case. Mathes v. Jackson, 6 N. H. 105; Kittredge v. Folsom, 8 N. H. 98. The evidence in the case had little, if any, legal tendency to prove such an exhibition of the claim in suit. It showed that the defendant thought the testator’s property liable to pay the note, if Hayes, the principal, did not; but there is nothing that indicates that he had this opinion because the note had been duly exhibited to him: on the contrary, his opinion would seem to be based upon the idea, that, as the testator had signed the note as surety, the surety would be obliged to pay it if the principal did not. The evidence was speculative and vague, and would seem to be insufficient for the purpose offered.

The question, that the suit was not brought within three years from the time of the original grant of administration, as required by Gen. St., c. 179, s. 5, is not raised by the pleadings, and we do not express any opinion in regard to it; but if it should be raised, it is difficult to see how the plaintiff could maintain this action upon the facts that now appear in the case. Walker v. Cheever, 39 N. H. 420, 428; Company v. Barnes, 48 N. H. 25.

Verdict set aside.

Foster, J., did not sit.