Stephen Codman, Executor, &c. versus Elizabeth Rogers, Administratrix, &c.
If the plaintiff in a bill in equity against an administrator would avail himself of the provision in St. 1793, c. 75, § 3, allowing an action to be brought within two years after the grant of letters of administration, provided it was not barred, thirty days before the death of the intestate, by the statute of limitations, he must make such averments as show that he is entitled to maintain the suit under that provision ; otherwise the defendant may plead, that the action did not accrue within six years before the suit was commenced, instead of six years and thirty days before the death of the intestate.
A bill in equity for an account, alleged a partnership between two by indenture, and a dissolution by the death of one of the partners, and a parol promise by the surviv- or to account to the plaintiff as executor of the deceased partner. It was held, that the suit was not founded upon the indenture, but upon the subsequent parol contract, and therefore that the statute of limitations might be pleaded in bar.
Held, also, that such suit did not concern merchants’ accounts, and so was not within the exception in the statute of limitations, respecting such accounts.
Where, to a bill in equity to account, brought by the executor of one of two partners, against the administrator of the other, who survived the former, the defendant pleaded in bar, that the action did not accrue within six years next before it was commenced, it was held, that in an answer in support of the plea, it was not necessary to allege that the cause of action did not accrue within six years and thirty *113days vext before the death of the intestate, the fact not being alleged affirmatively in the bill ; and that it was not necessary to state when a demand to account was made upon the intestate, because the fact could not be supposed to be within the knowledge of the defendant, and because the allegation that the cause of action, if any, accrued more than six years before the commencement of the suit, is equivalent to an averment that a demand to account, if necessary, was made before that time.
Although in cases where a previous demand is requisite to the commencement of an action, the statute of limitations will not begin to run until after a demand, yet unless the demand is made within a reasonable time, the plaintiff will not be entitled to relief in a court of equity.
What is a reasonable time for making the demand must depend upon circumstances ; but where no cause for delay is shown, it seems reasonable to require it to be made within the time limited by statute for bringing the action.
Where the executor of one of two copartners, having made a partial settlement with the surviving partner, lay by for seventeen years, and until after the death of such surviving partner, without making any demand for a further account, and in the mean lime many of the partnership papers were destroyed at two successive fires, and no cause was shown for the delay, it was held, that a bill in equity to account, brought by the executor against the administrator of the surviving partner, could not be sustained.
This was a bill in eqijity commenced in July 1828, by the plaintiff, as executor of John Codman, against the defendant, as administratrix of Penuel B. Rogers. The bill alleges, that in 1798 the testator entered into partnership with the intestate, by indenture, in the business of manufacturing cordage, for the term of five years ; that the copartners carried on the business until May 1803, when the testator died, whereby the partnership was dissolved ; that in 1803 and 1804, the intestate and the plaintiff divided between them all the stock of cordage materials remaining on band, and the intestate undertook to collect and adjust all the debts remaining due to the copartnership, which debts amounted to about $ 55,000 ; that on June 27th, 1809, the intestate rendered an account to the plaintiff of moneys collected, which account embraced but a portion of the whole amount of the debts, and there remained still due divers outstanding debts, to be adjusted and divided thereafter, as was expressly stated in the account rendered ; — which debts amounted to $30,000; that “on the first day of October, 1826, or thereabouts,” the intestate died, and his widow, the defendant, now of Brookfield, was appointed administratrix of his estate ; that the books and papers of the company, from June 27th, 1809, to the present time, have been in the posses*114sion of the intestate or the administratrix, and the plaintiff has not access t0 the same, and he is therefore not able to state what amount of the debts so remaining outstanding has been collected by the intestate or the administratrix, but he is informed and believes that a large proportion has been collected ; that payments of money and conveyances of real and personal estate have been made to the intestate and the administratrix, on account of the same, as will appear by the books and papers, and as the administratrix must know and believe, but which, for the reason before stated, the plaintiff cannot specify ; — except that one W. Gardner, one of the debtors, about July 6th, 1811, mortgaged certain land to the intestate, to secure the debt, and the title to the land has since, by a foreclosure, been vested in the intestate’s heirs ; that the administratrix knew the consideration of the mortgage, and so declared to the plaintiff’s attorney in August 1827. The bill further alleges, that since June 27th, 1809, no settlement has been made and no account been rendered by the intestate or the administratrix ; that trusting to the fidelity and promise of the intestate, that he would from time to time inform the plaintiff of any collections he should make, and would account therefor, and the intestate having removed from Boston (where the plaintiff resided) and lived many years in Brookfield, the plaintiff, during the life of the intestate, received no information of such collections, and did not demand of the intestate any account thereof; that in a reasonable time after the death of the intestate, the plaintiff repeatedly applied to the administratrix to come to an adjustment of the concern, and to exhibit the books and papers remaining in her hands, and particularly on the 10th of October, 1827, the plaintiff called upon her, at her dwellingbouse, and requested her to permit him to inspect the books and papers, for the purpose of examining whether any of the debts bad been collected since the settlement in 1809 ; that the administratrix said she would soon go to Boston, where the plaintiff resided, and take the books and papers with her, and would consult her friend and counsel as to the course she should pursue, and would give the plaintiff an answer to his request; and the plaintiff further, on the 30th of January. 1829, made a written demand for permission to inspect the *115books and papers ; but the defendant refuses to suffer the plaintiff to inspect them, or to come to an account or make any settlement with him. The bill therefore prays for a discovery, and an account, and for general relief.
The defendant, to all the discovery and relief prayed for by the bill, except the discovery whether she did not make the alleged declaration to the plaintiff’s attorney, and except the exhibition of the books and papers, pleads in bar, that the cause of action, if any, accrued more than six years next be fore the commencement of this suit; and for further plea, she says that neither she nor the intestate did, within six years next before the commencement of the suit, promise to come to any account for, or to pay to the plaintiff any sum of money, by reason of any matter charged in the bill. And the defendant, in support of her plea, answers, that according to her knowledge and belief, there never was any conveyance by Gardner to the intestate for the consideration mentioned in the bill, nor in any such manner as that the defendant is bound to render any account of the same to the plaintiff; and she denies that she made any declaration to the plaintiff’s attorney that the land was obtained by the intestate with funds in which the plaintiff had any interest, or that she was liable to account to him for the same. She further answers, that she has been in-, formed and believes, that the plaintiff repeatedly, and for years, between the death of the testator and the year 1809, had possession of all the books and papers, and that he never expressed a desire to see any of the books, or papers from the time of the settlement in 1809 till after the decease of the intestate, in 1826 ; that no entries were made in the books after the settlement in 1809, and she considered the affairs of the intestate, so far as the plaintiff had any concern therein, to be finally settled, and she did, under the advice of her friends, within the-year before the suit was commenced, refuse to submit the books and papers to the inspection of the plaintiff, but that since the commencement of this suit, under the advice of-counsel, and in the hope of avoiding the necessity of making an answer in court, she did submit the books and all the papers in her possession relating to the copartnership business, to the inspection of the plaintiff, and that he bad possession of them *116from the 11th to the 26th of August, 1828, and that they are in the hands of J. Hayward, in Boston, with notice to the plaintiff that he may further inspect them at his pleasure ; that she is desirous of giving the plaintiff all the information in her power concerning the books and papers, but she is unable to furnish all the information which may be desired, because she supposes that many or some of the papers may have been destroyed or lost at two fires, in 1819 or 1820 and 1825 ; and inasmuch as the plaintiff acquiesced in the settlement alleged to have been made in 1809, and never made any claim until after the lapse of seventeen years from that time and until after the death of the intestate, who alone could explain the transactions mentioned in the bill, if they ought ever to have been further answered, and inasmuch as it is not in the defendant’s power further to answer the bill, she prays that she may be hence dismissed and allowed her reasonable costs.
The plaintiff moved that the pleas should be overruled and the defendant be required to put in a full answer, for the following reasons : —
1. Because it appears by the bill, that the intestate died within two years next before the commencement of the suit, and therefore it is not barred by the statute of limitations, unless six years and thirty days had elapsed after the cause of action accrued and before the death of the intestate. (St. 1793, c. 75, § 3.)
2. Because it appears that the claim of the plaintiff is founded on a writing under seal, and therefore not within the statute.
3. Because the plea is not sufficiently supported by the answer, inasmuch as it is not alleged, either that the cause of action accrued more than six years and thirty days before the intestate’s death, or that any demand had been made upon the intestate to render an account.
Sept. 30th, 1829.
J. H. Jlshmun, for the plaintiff,
in support of the first objection to the plea, referred to St. 1793, c. 75, § 3, which provides, that an action grounded upon a contract, which might have been prosecuted against a person within thirty days next before his decease, may be commenced against his administrator within two years after the grant of administration and not *117afterwards, if otherwise barred by the general statute of limitations, of 1786, c. 52.
In regard to the second objection he cited Angelí on Limitations, 163 ; Bond v. Hopkins, 1 Sch. and Lefr. 413. The language of the bill shows an obligation on the defendant, by way of covenant, to account.
In support of the third objection he cited Topham v. Braddick, 1 Taunt. 571 ; Clarke v. Moody, 17 Mass. R. 145; Angell on Limit. 183, 184; Murray v. Coster, 20 Johns. R. 576.
This is a case of merchants’ accounts and therefore not within the statute of limitations. Bass v. Bass, 6 Pick. 362. [S. C. 8 Pick. 187.]
Hoar, for the defendant.
Oct. btzt, 1829 '
Wilde J.
delivered the opinion of the Court. The plaintiff moves that the plea of the defendant may be overruled ; and several reasons are assigned in support of this motion.
The first is, because the plea is insufficient in not averring that the cause of action accrued to the plaintiff six years and thirty days before the death of the defendant’s intestate, the plaintiff contending, that by St. 1793, c. 75, § 3, he was entitled to commence this suit at any time within two years after the granting of letters of administration to the defendant, provided the action was not barred thirty days before the death of her intestate. This objection to the plea would be well founded, if the plaintiff had made the proper averments in his bill, to bring his case within the provision relied on. But the time of the intestate’s death is not set out with any certainty. It is averred that he died on the first day of October, 1826, or thereabouts, and the time when administration was granted to the defendant does not appear. So that there is nothing in the bill to show that the plaintiff is entitled to maintain this suit under the third section of the statute of 1793, c. 75.
If the plaintiff would avail himself of the provision contained m that section, he must amend his bill and make the proper averments. A plea is sufficient, if the facts averred amount to a bar to the suit as the case is stated in the bill.
*118Another objection to the plea seems to have arisen from a mistake as to the foundation and scope of the bill. The bill is not founded on the contract under seal; that is alleged merely as inducement. The partnership was dissolved in 1803, by the death of John Codman, one of the partners ; and the stock on hand was divided between the parties. The defendant’s intestate then undertook, as the bill alleges, to collect and adjust the partnership debts, and to pay over the plaintiff’s share. This parol undertaking or assumpsit is the foundation of the plaintiff’s claim, and therefore the statute of limitations applies.
Then it is objected that the plea is not sufficiently supported by the answer, because it is not alleged that the cause of action accrued six years and thirty days before the death of the defendant’s intestate, nor that any demand had been made upon the said intestate to render an account. But it seems to the Court that the answer is well enough. The defendant pleads the general clause of limitation in the statute of 1786, c. 52, and relies upon that statute. She is not bound to show negatively that the plaintiff’s case did not come within the statute of 1793, c. 75, but it is incumbent on the plaintiff to show affirmatively that it did. Nor could the defendant be required to state, in her answer, the time when a demand to account was made on her intestate, because it cannot be supposed to be within her knowledge, and the allegation in the plea, that the cause of action, if any, accrued more than six years before the commencement of the suit, is equivalent to an averment, that a demand to account, if necessary, was made before that time, and if before, then the precise time when the demand was made becomes immaterial.
The remaining objection, that this is a case within the exception in the statute of limitations, as to merchants’ accounts, is clearly unfounded. The plaintiff’s claim is founded on a supposed undertaking of the defendant’s intestate to collect and account for the partnership debts ; and therefore cannot be brought within the exception of the statute.
Motion to overrule the plea overruled.
*119
Oct 5th, 1830.
Oct. llih.
Ai April term 1830, the plaintiff filed a replication, alleging that the causes of action set forth in the bill, did accrue within six years next before the commencement of the suit, to wit, after the death of the intestate and when a demand was first made on the administratix for an account, as alleged in the bill.
The case was briefly argued by Jlshmun.
Wilde J.
delivered the opinion of the Court. The plaintiff has offered no evidence of any promise made by the defendant, or her intestate, or of any recognition of their liability, within six years before the commencement of the suit; but he relies on the facts stated in the bill and admitted by the plea and answer, to show that the original cause of action did not accrue until 1826, when a demand was made on the defendant for an account. It is averred in the bill, that no account was rendered, or demanded, after the settlement in 1809, until after the decease of the defendant’s intestate in 1826. This allegation is not expressly denied in the answer, out the defendant alleges that she has been informed and believes, that during that time the plaintiff repeatedly and for years had possession of the books and papers of the concern ; and that she considered all matters between the parties to be finally settled. Whether a previous demand were made or not, she relies on the presumption arising from the lapse of time, and contends that in 1826, when an account was demanded, the plaintiff had no valid subsisting claim, and so that no right of action accrued to him thereby.
The question is, whether a dormant claim may be revived by a demand after seventeen years, during the whole or nearly the whole of which time a demand might have been made,.but was not, and no reason is assigned for the omission.
Generally, where a debt is payable in money and on demand, the statute of limitations begins to run immediately after the debt is contracted ; but if a demand previous to the commencement of an action is necessary, the statute will not begin to run until a demand is made. But in the latter case there must be some limitation to the right of making a demand. *120A party must not be permitted to sleep over bis rights, to the prejudice of the party on whom he makes a claim, and who by the delay may be deprived of the evidence and means of effectually defending himself. A demand must be made within a reasonable time ; otherwise the claim is considered stale, and no relief will be granted in a court of equity.
What is to be considered a reasonable time for this purpose, does not appear to be settled by any precise rule. It must depend on circumstances. If no cause for delay can be shown, it would seem reasonable to require the demand to be made within the time limited by the statute for bringing the action. There is the same reason for hastening the demand, that there is for hastening the commencement of the action ; and in both cases the same presumptions arise from delay. In the present case, the plaintiff, by his own showing, is chargeable with great laches. He has lain by for seventeen years without making any claim, and until after the death of the intestate whose estate he now seeks to charge. In the mean time many of the papers of the intestate have been lost by fire, and the defendant declares her inability to answer more fully than she has done in support of her plea. No sufficient reason is suggested in the bill for this long delay ; and to decree an account under such circumstances, would be a most dangerous precedent, against public policy, and the principles and rules of equity. If then it were admitted that the suit is not barred by the statute of limitations, still enough appears to show that the plaintiff is not entitled to relief in a court of equity, and further proceedings would be useless. In cases not strictly barred, but which nevertheless depend on reasons analogous to those on which the statute is founded, a court of equity will take the provision of the statute as a guide to its discretion, and refuse relief; leaving the party to his legal remedy, if he has any legal right.
Bill dismissed.