Bennett v. Dawson , 15 Ark. 412 ( 1855 )

Mr. Justice Scott

delivered the opinion of the Court.

This was an action of debt, commenced in the Hot Spring Circuit Court, on the 7 th day of April, 1853. It is alleged, in the declaration, that the cause of action accrued on the 12th day of July, 1852.

The defendants filed three pleas:

Isi. That the plaintiffs did not exhibit the alleged demand,, duly authenticated by affidavit, within .two years next after the date of the grant of letters of administration.

2d. Eul tiel record.

3d. That although letters were granted, more than two years before the institution of the suit, to wit: on the 12th day of December, 1850; and although the demand accrued within two years next after said grant, to wit: on the 12th day of July, 1852, yet the plaintiff did not exhibit said demand, duly authenticated by affidavit, within two years next after the date of said grant.

To \ho jvrst plea, the plaintiff replied, that the demand accrued on the 12th day of July, 1852, and was exhibited, duly authenticated by affidavit, within two years next after it accrued. The defendants demurred to this replication, and the court found the law for them.

To the second,plea, the plaintiffs toot issue in fact.

To the third plea, the plaintiffs demurred upon the ground, that it was sufficient to exhibit the demand within two years after it accrued, without regard to the date of the grant of the letters. This the court overruled, and found the law for the defendants; and the plaintiffs declining to answer farther and electing to rest, final judgment was given for the defendants, and the plaintiffs brought their case here by writ of error.

The point of law involved was decided by this court in the case of Walker as ad. vs. Byers, 14 Ark. R., p. 246.

Two specific objections are made in this court to the third plea: First, That it shows that the cause of action accrued on the 12th of July, 1852, and that the expiration of the period of two years for the exhibition of claims, was the 2d day of December, of that year, leaving less than five months for the exhibition, whieh, it is insisted, is a period so unreasonably short that the law, if enforced, would impair the obligation of the contract. To this, it is a sufficient answer to say that the law was in force when the contract was made. But if a case should occur where a cause of action arose, from a dormant and contingent condition, at such an impracticable period, just before the expiration of the two years, as to make the objection tenable, the effect would not be to let in the claim, as against an executor or administrator, but as against the heir or distributee, as a superior equity to his in assets that might have descended or been distributed to him; the legislature having the undoubted power, in the advancement of a great public policy, to prefer or to postpone one creditor to another.

The oth&r objection is,, that the plea does not allege that, upon the grant of letters, public notice was given to creditors as the statute prescribes. Doubtless, it is the duty of the executor or administrator to give the prescribed notice at his official peril, but this is not made a condition precedent, by the statute, for the exhibition of claims within the required period. Judgment affirmed.

lion. E. II. ENGLISH, 0. J., not sitting in this case.