Cook v. Rice

The statute of December SO, 1799, sec. 2, (1 N. H. Laws 169,) enacts, iliat the statute of' limitations “shall not extend to bar any action hereafter brought upon “ any contract therein mentioned, by any executor or admin“istrator, until the expiration of two years from the time of “ pioving the will, or taking out letters of administration, c Provided, the testator or intestate had cause of action at “the time of his or her decease.” Upon this clause in the statute, the replication in the present case is founded ; and it is objected, that it is not alleged in the replication, that the cause of action accrued to the testator at any time within six years next before his decease. But the replication alleges, that the testator had cause of action at the time of his decease, and this, being in Ihe words of Ihe statute, seems to us to be sufficient. It is c learly v\ ell upon a general demurrer.

It is also objected, that the time of the testator’s decease is not averred. This objection, had it been particularly assigned as a cause of demurrer, would have deserved consid*61eration (Story's Pl. 79); but we are of opinion, that ii cannot prevail upon a general demurrer.

The time, when this action was commenced, is averred. This averment is altogether unnecessary ; the commencement of the action forms a part of the record, and need not be averred.

Judgment for the plaintiff.