The plaintiff, in his writ, presents his claims against the defendant. One for a sum of money received by John Wilkins, former executor of the estate of Samuel Lowder, from the United States, under a treaty with Mexico, arising from the destruction, by the citizens of the Mexican government, of a vessel and cargo, of which Lowder and the plaintiff’s intestate were joint owners. The other, for a sum of money received by Lowder, in his lifetime, being the proceeds of a quantity of molasses sold in Providence, by the consignees of the plaintiff’s intestate.
Lowder deceased in 1841. Wilkins was duly appointed and qualified as executor on his estate, in August of that year. The plaintiff commenced this action, Oct. 13, 1851, against Wilkins, executor, who was then in full life.
The defendant, who now defends this suit, as administratrix de bonis non, of Lowder, pleads the statute of limitations, relying upon § 23 of c. 120, R. S., which provides, that no executor or administrator, who has given bond and notice of his appointment, according to law, shall be held to answer to the suit of any creditor of the deceased, unless it shall be commenced within four years from the time of his giving bond as aforesaid ; except in cases after mentioned.
The plaintiff contends that these statute provisions do not apply to the principal claim in this case, for the reason that the relation of debtor and creditor never existed between himself or his intestate and Lowder; that the claim and right of action originated after the death of Lowder.
Section 24, of c. 120, provides, that when assets shall come to the hands of an executor or administrator, after the expiration of said four years, he shall account for, and apply *202the same in like manner as if they had been received within said four years.
Was the money received from the United States, for Mexican spoliation, assets in the hands of the administrator ? In Foster v. Fifield, 20 Pick. 67, this precise question was raised. Shaw, C. J., in delivering the opinion of the Court in that case, says, “ the objection taken to this is, that this money, obtained from the king of the Two Sicilies, by means of a. treaty made by the government of the United States, was a new acquisition, and not a part of the assets of the intestate’s estate. This proposition is hot tenable. ' Fifield received it as administrator, as trustee for all entitled} first, for creditors, and then for distributees or heirs. It is in the nature of a debt due to the intestate, at the time of his decease, but collected afterwards through the medium of the government.”
If this doctrine be sound, and we perceive no reason to doubt its correctness, then, in legal contemplation, the parties sustain the same relation to each other that they would have done had Wilkins collected other moneys, or reduced to possession other assets of his testator, in which the plaintiff had an interest, in his representative capacity, within four years after giving bond, as provided in § 28. We also think that the statute bar applies by necessary implication, from the language used in § 24, cited above.
In this case the plaintiff had ample time to ascertain his rights, before the money obtained from the United States went into the hands of the defendant’s predecessor. And after the money was received, there was sufficient time within which to commence his suit, before the statute bar attached. If, therefore, rights have been lost, that loss must be attributed to want of proper diligence in the investigation and prosecution of those rights.
The plaintiff was not concluded by the adjudication of the commissioners of the United States, but might have sought a remedy in this Court, had it been seasonably prosecuted. Mercantile Ins. Co. v. Corcoran, 1 Cray, 75.
*203The other claim set forth in the plaintiff’s writ, is based apon the assumption, that many years ago, (about 1831,) Lowder received a sum of money, which, with the interest thereon, would now amount to five hundred dollars, for a quantity of molasses, sold by the consignees of the plaintiff’s intestate, and belonging to him.
To this claim the defendant also interposes the statute of limitations. To avoid this plea, the plaintiff, as appears by the report of the case, stated that he should show that the " payment for the molasses aforesaid, had been fraudulently concealed from the plaintiff’s knowledge till about the time of the commencement of this suit.”
The defendant objected to the proof, because there was no allegation of the kind in his writ, or counter brief statement. Without deciding whether, under oar system of pleading, such evidence could be offered by the plaintiff, without pertinent allegations in his pleadings, it is clear that the proof here offered is not sufficient to take this case out of the operation of the statute of limitations.
The offer is indefinite as to the time when the alleged fraudulent concealment was discovered. It may have been before the expiration of the four years after Wilkins gave bond as executor. If so, the claim would be barred. Nor does it appear by whom the concealment was practiced, nor that any diligence had been used to discover the fraud. Still further, it is very difficult to perceive how such a fraudulent concealment as the statute contemplates could have boon practiced under the circumstances of this case. Certain it is, that to entitle the plaintiff to a hearing, the proof offered should, if produced, have brought his case clearly within the provisions of the statute. This it wholly fails to do. A replication, setting out the same facts which the plaintiff offered to prove would be adjudged bad on demurrer.
There were other matters discussed in the arguments of counsel which it is not necessary to consider, as it is apparent from what has already been said, that the action cannot be maintained.
Plaintiff nonsuit.