The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-04-21
OPINION OF THE COURT, BY WHITING,

IoPlNIoN OF THE COURT, BY WHITING, J..
The plaintiff brought an action
against the defendants, executors un-
der the will Of G. Trousseau, upon a
promissory note Of deceased. and pro-
! ducsd evidence which showed that the
claim Was presented to the executors on
February %, 1895, and on February e6.
1895. was rejected by the defendants,
and on April q, 1895. the plaintiff be-
gan her action and summons issued
| She allegss in her complaint that she
presented her cl2im duly verified 10 the
defendants or February 25, 1895. and
that on February 20, 1895. the defend
ants rejected her claim and refused 10
pay il; but plaintiff does not allege
that she has brought her action with
in two months after such rejection"
The defendants in their answer deny
the truth OF each and every allegation
in plaintiffs complaint, and give no.
tice that among other defenses they re-
ly on fraud, forgery. want of considera-
ton. illesality and the statute of limi-
taliors. and that suit was not brought
on plaintiffs claim within sixty days af-
ter the same was rejected and disallow-
ed by defendants.
II appeared at the trial that plaintiff
had brought her action on April 81,
1895. and upon the close of plaintiffs
case the defendants moved 10 dismiss
the complaint on the ground that plain
tiff had not brought her action within
the time prescribed by law, viz, within |
two months after the claim was reject |
ed by the executors.
The Court granted the motion, to
which plaintiff excepted.
The statute. Acts of 1865 as amended
by Chapter 10, Laws of 1876. Comp.
Laws, page SS7. provides for no
riee 10 creditors and for the filing
of claims against estates Of deceased
persons, and Section 3 provides, If a
claim be rejected by the executor or
suit must De brought
upon il against the executor or admin
istrator within two months after such
rejection or within two months after
the same shall become due, or ii will be
forever barred"
after February 10Th, the day OF
rejection OF plaintiffs claim?
The word month shall be construed
to mean a calendar month unless 9th
erwise expressed Chapter 3. Civil
Code. OF the construction of laws. Sec.
Is, Civil Code
In Bowler Y. Walker. Haw. 500. the
Court held that q writ issued August
., 1888, judgment having been rem ,
Tered February %. 1898. is issued
within six months from the rendition
If judgment" as required by statute. /.
The Court followed the general rule
hat in computing the time within
which an act is to be done, the first day
hall be excluded and the last included.
n re Election Law, S Haw. COZ; Sec.
166, Civil Code.
By excluding the day OF rejection Of :
he claim, February 18th, the first i,
month would begin February 9th and =
Nd March 18th, and the second month :
'eg1n March 9th and end April 26th; +
eeordingly the action brought on April !
9Th was not commenced within the !
ime prescribed by law. but was one day
90 late :
These statutes of non-claim are fire.
uently called special statutes of limi- Z
alton Statutes of this character NAV I
z considered not as statutes of lin :,
-ation but rather as special regulations
probate Law which impose the loss of
ne claim if the party fail to sue on il
Tithin the time prescribed.
The executor or administrator cannot
TaiEe this statutory regulation The
tatute Is imperative and must be fol- 1
1Ted By the plaintiff. II is not neces-
airy for defendants to specially plead 9
his statute. but they can take adTan-
age Of il If the evidence or proofs
how that plaintiff has not complied
nth the provisions Of the statute
The rule OF the Circuit Courts Rule
provides that in personal actions
&c statute OF Limitations shall Be spe-
ally pleaded" This has generally
sen regarded as applicable to Sec. 1895.
I'd following sections, Civil Code. of
le time Of commencing personal ac-
ons Stat Of Lin Of Personal Actions n
1d not 10 this Act Of 1868 Stat of .
on-CIaim or Special Lmita tions) re- r
ting TO the presentation and rejection
claims against deceased persons es-
ties
In Shaw v RahaIs, 3 Hav 367, the =
ourt held that this special statute of
mutations in the Act of June q. 1858
hitting the time within which to bring
hts against administrators on reject
claims was not required to be spe- =
ally pleaded II
In the case az bar plaintiff had no
rprise, and could have none. for al
ough the answer Of defendants does O,
u technically Eord for word set up
'fiee that they rely on the statute oil