#### * Samuel Guild and Another *versus*Nathan Hale, Executor, &c.

The direction of the statute of 1784, c. 2, for the distribution of insolvent estates, that, when an executor or administrator of an insolvent estate is dissatisfied with the allowance of a claim by the commissioners, the creditor shall commence his action at common law “ as speedily as the same can be done ” after notice of such dissatisfaction, does not require that such action be commenced, in every case, at the next term of tile Court of Common Pleas.

The filing of a claim witli the commissioners of an insolvent estate, is tantamount to the commencing of an action, within the meaning and intent of the statute of 1793, c. 75, § 3, which limits such actions, in certain cases, to two years after letters testamentary, or of administration, are granted.

Assumpsit on a negotiable promissory note, dated the 25th of July, 1811, made by *Thomas Huse,*the defendant’s testator, payable, in three months from the date, to *Obadiah Huse,*and by him endorsed to the plaintiffs.

The estate of the said testator had been represented insolvent, and the commissioners appointed by the judge of probate had allowed the claim of the plaintiffs on the note upon which this action. was brought. The defendant objected to the allowance, and gave notice, on the 3d of June, 1818, of his dissatisfaction, according to the directions of the statute for the Distribution of Insolvent Estates. (1) The then next Court of Common Pleas, in the county of *Suffolk,*where the parties dwelt, was held on the 7th of July, 1818 and the writ in this action was sued out on the 27th of June, 1818, and returnable at the September term following. These facts were pleaded, in bar, by the defendant; and the plaintiffs replied that, after the notice was given to them, they commenced this action “ as speedily as the same could be done.” The defendant demurred to the replication, and the plaintiffs joined in demurrer.

The defendant also pleaded the statute of limitations (2) in bar. The plaintiffs replied that the defendant’s testator died within six years after the cause of action accrued, *viz.,*on the 1st of October, 1816 ; and then set forth the representation of insolvency of his estate, the proceedings before the commissioners, the objection and notice by the defendant on the 3d of June, 1818 ; and averred that they commenced this action as speedily as it could be done aftei the notice. The defendant rejoined, that letters testamentary were granted to him on the 4th of June, 1816; that he gave public notice, &.c.; that the plaintiffs exhibited their said * claim to the commissioners on the 28th of February, *4051818, and not before, which was after the expiration of the six years; that the defendant gave notice to the plaintiffs of his objection to their said claim on the 18th of May, and on the 3d of June, 1818, which was within two years after he had so undertaken the trust of executor; and after the expiration of the two years, *viz.,*on the 27th of June, 1818, the plaintiffs commenced this action. The plaintiffs demurred to this rejoinder of the de fendant, who joined in the demurrer.

There was much argument on the form of pleading; but the main question, that was argued on the demurrer to the replication to the first plea in bar, was on the construction of the statute of 1784, c. 2, for the distribution of insolvent estates; whether the action must be brought, at all events, at the next court to which a writ could be made returnable, or whether any circumstances, which could exist, would excuse the delay of the creditor beyond that term.

*Gallison,*for the defendant.

We contend that the words of the statute, “ as speedily as the same can be done,” mean at the next court to which a writ may be made returnable after the notice, or at least after the twenty days. If not, when is the action to be brought ? No one will contend that it is to depend upon the circumstances of the creditor’s family or business. There would, therefore, be no other limitation than that of four years, prescribed by the statute of 1791, c. 28.

In the statute of 1786, c. 21, the words in the form of the agreement to submit, compared with those in the third section, and the construction of that section in the case of *Durell*vs. *Merrill,*(3) and other cases, show that the meaning of the clause in question is as the defendant contends.

Every statute ought to be construed for preventing delay as much as possible. (4)

The plea of the statute of limitations will not be denied to be, *prima facie,*a good bar. It is for the plaintiffs to show * themselves excepted from its operation. They attempt to do this by alleging the death within six years, and the proceedings under the commission of insolvency.

By the death within six years, the plaintiffs became entitled to two years from the granting of administration, for commencing their action. (5) There is no saving, from either of the statutes, of claims filed before commissioners; but in truth, as appears from the pleadings, the plaintiffs did not file their claim within six years. Nor *406did they commence their action within the two years; although the report of the commissioners was made on the 18th of May, and they had then notice of the defendant’s objection; besides a further notice in writing on the 3d of June, and the two years did not expire until the 4th of June.

*Hubbard*and *J. T. Austin*for the plaintiffs.

(1)

 Stat. 1784, c. 2.

(2)

*Stat.*1786, c. 2.

(3)

1 *Mass. Rep.*414.

(4)

*Bac. Abr Stat.*1,10.

(5)

*Stat.*1793, c. 75, § 3.

*Curia.*

If the legislature had intended that the action should be brought, in all.cases, to the court next succeeding the notice, they would have used more explicit language ; as they had done in the statute of 1786, c. 21, which was cited in the argument. The requirement of the statute, that the action shall be commenced “ as speedily as the same can be done,” will always protect executors and administrators against unnecessary or unreasonable delay.

If the statute had required that it should always be commenced at the next court, it might often prove highly injurious to the creditor, without any important advantage to the executor or administrator. If the creditor lived in a remote part of the state, as in the case put by the plaintiff’s counsel, he might have notice so late that it would be impossible to commence his- action at. the next court; so, if he received notice on the evening of the last day of service, and lived at a distance from any attorney who could make out a writ, or from any officer who could serve it, — or if the creditor should die immediately after receiving notice, and before he had opportunity to sue out a writ, — in these, and perhaps in many other cases, although the action should not be brought to the next court, it might still be brought * as speedily as it could be done, within the true intent of the statute.

The intention of the legislature was, that it should be done as speedily as possible, having regard to the place of residence, and other circumstances of the parties. These circumstances may be the subject of evidence in each particular case; and the creditor would no doubt be held to show a clear necessity for delaying his action beyond the next term. But we cannot say that no such circumstances can ever exist; and that the creditor will be barred, in all cases, unless his action is brought at the first term next following the notice.

The plaintiffs are not barred by the statute of limitations. The six years had not expired at the death of the testator; the plaintiffs, therefore, had two years, after the grant of administration, within which to commence an action against the defendant, *(Stat.*1793, c. 75.) Before it was necessary for them to commence an action, and before they could regularly do it, according to *Stat.*1788, C; 66, that is, within one year after the defendant undertook his trust, he nod represented the estate to be insolvent. This again prevented *407the p.aintiffs from commencing an action at law, and they were compelled to present their claim to the commissioners for allowance. They did so present it within the time prescribed by law, and by the order of the judge of probate. It is therefore clear that their claim was not barred by the statute of limitations, when it was first laid before the commissioners.

The proceedings in the present action are in the nature of an appeal from the adjudication of the commissioners. (6) The question to be tried is, whether they ought, or ought not, to have allowed the plaintiff’s claim; and it is to be tried here on the same principles on which it was, or ought to have been, tried before the commissioners. The presenting of the claim to them was virtually the commencement of this action.

* But it seems unnecessary to resort to any subtile or technical reasoning, to take this case out of the statute of limitations. The action is maintainable under the express provisions of the statute of 1784, c. 2., for the distribution of insolvent estates. By that statute the creditor is prohibited from bringing his action at law in the first instance ; but if his claim is disallowed, or is objected to by the executor, he is authorized to commence the action, without regard to the time that may have been consumed in the Probate Court, or before the commissioners. The only limitation as to time is, that it shall be done as speedily as can be after the report of the commissioners, and after notice of the dissatisfaction of either party.

Upon the other construction of the statutes, the most absurd and injurious consequences might follow. ' The executor or administrator may omit to represent the estate insolvent, until near the end of the first year: the commission may then be kept open eighteen months, so that the two years will have expired ; the administrator may, without even any pretence of a legal defence before the commissioners, object to the allowance of such a claim, and require it to be struck out, unless the creditor shall commence and prosecute his action at law; and when the action is commenced accordingly, and as soon as possible after the notice, the administrator may object that it comes too late, and that the creditor is already barred by the statutes of limitation.

The plaintiffs’ replication to the first plea in bar is adjudged good ; and the defendant’s rejoinder to the plaintiffs’ replication to the second plea in bar is adjudged bad. (a)

(6)

**Vide 13 *Mass Rep.*537, *Dodge*& *Al.*vs. *Breeds Adm.*

(a)

**If the proceedings are to be regarded, as the Court say they are, in the nature of an appeal from the decision of the commissioners, it would seem most conformable *408to the language of the act, and to analogous cases, to require the action to be brought to the next court to which it can be brought after the expiration of twenty days aftei the report of the commissioners. Otherwise, the suit would not be brought so soon as it *could*be done.