Given v. Whitmore

This is an action against an administrator. It was not commenced within the two years mentioned in the act, 1872, c. 85. To avoid this ground of defense the plaintiff averred in his writ, and claimed at the trial, that his cause of action had been fraudulently concealed from him by the defendant. But there was no evidence that would justify the jury in finding such a concealment, and the presiding judge ordered a nonsuit. We think the nonsuit was right. The only evidence offered in support of the alleged fraudulent concealment was the testimony of the plaintiff that the defendant, before he was appointed administrator, promised that he would see to the plaintiff’s account against the estate, which he neglected to do. But the making of such a promise, and its nonfulfillment, could not conceal from the plaintiff the fact, if it was a fact, that the estate *376was indebted to him. His cause of action, if he had one, could not be thereby concealed. His' cause of action is an account annexed to the writ for work and labor performed for the deceased in his lifetime, and for seventy-five or a hundred other items of cash paid for groceries and other articles. The plaintiff’s delay in presenting and prosecuting his claim may have been caused by the defendant’s promise, but his knowledge of the fact that he had such a claim could not be thereby obliterated. The defendant may have been guilty of such fraud or negligence as would give to the plaintiff a right of action against him; but such right would have to be enforced in another and a different form of action from the one now before us, and the defendant would have to be sued in another and a different capacity from the one in which he is now sued.

There is another averment in the plaintiff’s writ intended as an avoidance of the statute of limitations. It is an averment that assets came into the hands of the defendant within six months of the time when the action was commenced. But there is no evidence whatever in support of this averment, and it will not be further noticed.

We think a'nonsuit was properly ordered.

Exceptions overruled.