
    John Hill vs. William A. Mixter.
    If a creditor of a deceased person, whose executor has given bond, dies, the time withiu which his executor may bring an action against the executor of the debtor is not extended by the provisions of Gen. Sts. c. 155, § 10.
    Contract brought by the executor of Kittredge Hill against the executor of Nathan Rice, upon a promissory note for $1000 signed by the latter. It was agreed, in the superior court, that Rice died in July 1859, and his executor filed his bond on the 2d of August 1859; that Hill died in December 1859, and his executor filed his bond in January 1860; and that this action was commenced on the 24th of September 1861. Rockwell, J. ruled that"the action could not be maintained, and directed the jury to return a verdict for the defendant, which they did. The plaintiff alleged exceptions.
    
      F. H. Dewey, for the plaintiff.
    
      P. C. Bacon, for the defendant.
   Merrick, J.

This action was commenced more than two years after the appointment of the defendant as executor of the last will of Nathan Rice deceased, and after he had given bond for the discharge of his trust, and after he had given the notice required by law of his appointment. It is not claimed that the cause of action did not accrue within these two years, or that, any former action had been commenced and had failed by reason of an insufficient service or return, or by any unavoidable accident, or that assets had come into the hands of the defendant after the expiration of said two years, which he had not previously received and duly accounted for. The action is therefore barred by the provisions of Gen. Sts. c. 97, §§ 5-8.

But the plaintiff contends that the action may be maintained under Gen. Sts. e. 155, § 10, which provide that if a person entitled to bring or liable to any action of the class previously mentioned in the same chapter shall die before the expiration of the time therein limited, or within thirty days after the expiration of the time of such limitation, and the cause of action survives, the action may be commenced by or against the executor or administrator of the deceased person at any time within two years after the grant of letters testamentary or of administration ; and not afterwards, if otherwise barred by the other provisions contained in the same chapter. But this position cannot be sustained upon a just construction of the statute. Its provisions are to be construed distributively in reference to the two distinct cases or contingencies therein mentioned, namely, first, the death of a person entitled to bring an action, and, secondly, the death of a person liable to an action. Thus, in the first place, if a person entitled to bring an action shall die before his cause of action is barred by the statute of limitations prescribed in that chapter or within thirty days afterwards, his executor or administrator may maintain an action for the recovery of the claim or damage, at any time within two years after he shall have been duly appointed as executor or administrator; and secondly, if the person liable to such action shall die before or within thirty days after it has been barred by that statute, his executor or administrator shall be liable thereto at any time within two years after he shall have received letters testamentary or of administration. So construed there is no conflict or inconsistency between the provisions in e. 155, § 10, and those contained in c. 97, § 5. But full effect will thereby be given to both.

Exceptions overruled.  