#### RADUE, Appellant, *v.*PAUWELYN, Respondent.

(No. 1,441.)

(Submitted April 15, 1902.

Decided July 14, 1902.)

*Executors*— Rejection *of Glam*— Suit *on Note*— Waiver.

1. The iact that an executor rejects a note presented as a claim against the estate does not authorize suit on the note before its maturity.

2. The consent by defendant in an action on a note, commenced before its maturity, to the filing of a substituted complaint after the maturity of the note and the filing of an answer does not estop him from relying on the premature bringing of the action as a defense.

*69
      *Appeal from District Court, Silver Bow County; William Clancy, Judge.*

ActioN on a note by Frederic Radue against Cyril Pauwe-lyn, as executor of James Tuoby, deceased. Prom a judgment for defendant, plaintiff appeals.

Affirmed.

*Mr. G. W. Stapleton,*and *Mr. Oliver M.*Hall, for Appellant.

*Mr. John W. Cotter,*for Respondent.

THE HONORABLE JAMES M. CLEMENTS,

one of tbe district judges of tbe First judicial district, sitting in tbe place of Mr. Justice MilbueN, delivered tbe opinion of tbe court.

Tbis is an action by the appellant against tbe respondent, as executor of tbe last will of James Tuoby, deceased, upon a promissory note executed March 24, 1893, payable two years after date. James Tuoby, tbe maker of tbe note, died October 2, 1893, and on November 2, 1893, respondent was duly appointed executor of bis will.

After respondent qualified as executor, and bad given notice, to tbe creditors of tbe deceased, appellant presented bis claim to tbe executor, and tbe same was. disallowed and rejected on December 26, 1893. On December 28, 1893, tbis suit ivas commenced. On October 31, 1898, by consent of parties, appellant filed a substituted complaint, setting forth tbe same cause of action alleged in tbe original complaint. On November 14, 1898, respondent filed an amended answer setting up tbe fact that tbe suit was commenced prior to. tbe maturity of tbe note. On March 13, 1899, appellant filed a replication to tbe amended answer, admitting that tbe suit was commenced December 28, 1893, and that tbe note sued on matured March 24, 1895. At tbe time of tbe filing of tbe replication, respondent moved for judgment on tbe pleadings, which motion was granted. • ■

It is admitted by tbe pleadings that suit was commenced prior to tbe maturity of the note, but appellant insists that tbe cause *70of action accrued, not upon the maturity of the note, but upon the’rejection of his claim by the executor; that such rejection constituted such a breach of the contract as that an action would lie;, and also that respondent is estopped from invoking the premature bringing of the suit as a defense, by consenting to the filing of the substituted complaint after the action accrued, and by answering the same.

■ The authorities cited do not support the views urged by appellant, and the record in the case discloses nothing which can aid the appellant in the way of entitling him to recover upon an action prematurely brought, or make inapplicable the general rule of law.that the right,of action must be complete when suit is brought. ' .

The judgment of the district court is affirmed. *Remittitur*forthwith.

Me. Ciiiee Justice Bbantly : I concur.

Me. Justice Pigott : I concur.

Me. Justice Milbuen, being disqualified, did not hear the argument and takes no part in the foregoing decision.