Woodward v. Perry , 85 Me. 440 ( 1893 )

Walton, J.

This is an action to recover from the defendant a portion of the money paid to him on a judgment which he recovered as administrator on the estate of Joseph Givin, in the court of commissioners of Alabama claims. The money was received more than two years before the commencement of the suit; and the only question we find it necessary to consider is whether the action was seasonably commenced. We think it was not. «

If the defendant was ever liable to the plaintiff for any portion of the money so received, it was in his representative and not in his private capacity; and the action not having been commenced within the two years limitation mentioned in section 12, chapter 87, of the Revised Statutes, nor within the two years limitation mentioned in section 13 of the same chapter, we think the right to maintain it must be regarded as barred by the lapse of time.

We do not think this result can be avoided by the fact, if it be a fact, that the defendant distributed the fund among the heirs of the estate after notice of the plaintiff’s claim; nor by the fact that the defendant is not described as an administrator in the plaintiff’s writ. In distributing the fund, after notice of the plaintiff’s claim, the defendant would do so at his peril. The plaintiff’s claim, if seasonably sued, would not be thereby affected. But we can perceive no reason, nor do we know of any authority, for holding that the time for the commencement of the suit would be thereby enlarged.

Nor do we think the plaintiff could avoid the statute of limitations in favor of administrators by omitting to describe the defendant as an administrator in his writ. Such an omission might, perhaps, by creating a variance between the cause of action, as stated in the writ, and the cause of action established by the proof, be regarded as furnishing an independent ground of defense, unless cured by an amendment; but surely, it could not enlarge the time for the commencement of the suit.

Judgment for defendant.

Peters, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.