
    Adm’r of Charles C. Gilbert v. Adm’r of Thomas Little.
    The allowance of further time to settle the estate of the defendant’s intestate does not withdraw the ease from the limitation of four years, provided by section 103 of the administration law, Swan, 357 (old ed.)
    The statute begins to run against creditors on the giving of the bond and publishing of notice, except when assets subsequently come to the hands of the administrator, or the cause of action subsequently accrues.
    A notice of appointment is good, though the fact of appointment is not expressly stated therein, and the notice consists merely of a demand, officially signed by the administrator, that all persons indebted to the estate come forward and make payment, and all persons having claims are notified to present them, etc.
    This was a writ of error .to the court of common pleas of Muskingum county, reserved in the district court for decision here.
    The original action was one of assumpsit, brought by the administrator of the estate of Charles C. Gilbert against the administrator of Thomas Little, deceased. The cause of action stated in the first count of the declaration is, that, on September 11,1841, Belknap & Graham made a note payable to the order of Little, at the Bank of Zanesville, for $1,316.25, twelve months after date, which Little indorsed in the words : “ Pay to the order of Charles C. Gilbert, and I do hereby waive protest and notice of non-paymeDt, September 11, 1841that the note was presented at maturity and at the place named, but its payment refused; and that Gilbert was ready and willing to protest and to give notice, had not *notice been waived by the indorsor. The second count is for money Lad and received.
    To this declaration, the defendant pleaded :
    1. Non assumpsit.
    2. That defendant was appointed administrator on Little’s estate, April 30, 1842, in Muskingum county; that he gave bond, and within three months thereafter, to wit, May 6, 1842, “ in due form •of law caused notice of his said appointment as such administrator to be published in a certain neivspaper then and there published, and of general circulation in said Muskingum county, for three •■consecutive weeks and that this suit was not commenced within four years from the time of defendant’s giving bond as aforesaid.
    A notice, not differing in effect from the second plea, was added.
    Taking issue to the country on the first plea, the plaintiff replied to the second:
    1. That shortly before the expiration of the eighteen months allowed by law, from the date of the defendant’s administration ’bond, to wit, on September 7, 1843, the court of common pleas of Muskingum county allowed the administrator one year further time ; that the plaintiff’s claim is such as would be affected by the insolvency of the estate ; that said estate has not been declared insolvent, nor had the plaintiff’s claim been exhibited to the defendant till June 1, 1848, when it was for the first time disputed and rejected ; and that the estate of Little was not fully administered and settled at the time of commencing the suit, Which time was within four years after the expiration of the one year so allowed by the court.
    2. That defendant did not give notice as alleged in his plea.
    The defendant demurred to the plaintiff’s first replication, taking issue on the other; and the court of common pleas sustained the ■demurrer.
    The issues being submitted to the court, the defendant offered in evidence the following, the plaintiff’s objection was overruled, and the notice received;
    * “ LEGAL NOTICE.
    “ All persons indebted to the estate of Thomas Little, late of Madison township, Muskingum county, deceased, are hereby notified to come forward and make payment immediately; and all persons having claims against said estate are notified to present them properly authenticated for settlement within one year front' this date.
    “Elsey Little, Administratrix.
    
    “ May 6,1842. James Little, Administrator."
    
    It appeared in evidence that Gilbert was cashier of the Bank of Zanesville from 1832 to 1843, and it was his practice to cause indorsed promissory notes, payable at that bank, to be protested by a notary, like bills.
    The court entered judgment for the defendant, and overruled the' plaintiff’s motion for a new trial; to all which plaintiff excepted.
    
      Searle & Cox, for plaintiff in error, cited :
    Story on Prom. Notes, secs. 161, 297, 368, 479; Barkhurst v. Smith, Willes, 332; 11 Vt. 493; 2 Gill & Johns. 382; Com. Dig., Agreement C; 2 Bouvier’s Law Dict. 307; 1 Jac. Law Dict. 330; 3 Denio, 16; 1 Comstock, 186; Nicholls v. Webb, 8 Wheat. 326, 331; 2 Doug. 425; Scott v. Greer, 10 Barr, 193; Wall v. Bry, 1 Louisiana, 312; Berkshire Bank v. Jones, 6 Mass. 523; 1 Chit. Pl. 681; 12 Ohio, 121; 3 Wend. 574.
    Goddard, Converse <& Eastman, for defendant in error, cited :
    Story on Prom. Notes, secs. 271-273; Union Bank v. Hyde, 6 Wheat. 572; Buchanan v. Munhall, 22 Vt. 56; Emerson v. Thompson, 16 Mass. 429; Heath v. Wells, 5 Pick. 140; Thayer v. Hollis, 3 Met. 369; Hogden v. White, 11 N. H. 109; Brown v. Anderson, 13 Mass. 201; Barnard v. Graves, 13 Met. 95.
   Corwin, C. J.

Having come to a conclusion, which disposes of this controversy on the demurrer to the first replication to second plea, and the issue joined on the second plea and second replication, we have not found it necessary to examine the important question, which has been so elaborately argued, whether, under the waiver of notice, presentment of the note was also waived.

*A decision of the point made by the demurrer to the replication demands an examination of the following provision of láw:

“No executor or administrator, after having- given notice of his appointment, as provided in section 81 of this act, shall be hold to answer to the suit of any creditor of the deceased, unless it be commenced within four years from the time of his giving bond as aforesaid, excepting in the cases hereinafter mentioned.” Swan’s-Stat., old ed. 357.

The next section-allows, as one of the exceptions, the case when assets come to the administrator’s hands after the four years, giving . the creditor one year after actual notice of their receipt, and not more than four years after the receipt of the assets in any case.

The succeeding section provides, as another exception, the case when the right of action accrues after the four years.

But this plea brings the case clearly under the operation of the-section first cited. Does the replication withdraw it from its operation ? If not, there is nothing- in the other sections to sustain the • plaintiff’s action.

. It is claimed by plaintiff’s counsel, in order to take this case out of the statute:

That the notice given by the administrator of Little was not the “ notice of appointment ” required by the statute; but we find that it is the notice usually given by executors and administrators in. Ohio, and is a substantial compliance with the statute.

It is also claimed that the special limitation of the statute shall not operate upon this claim until the expiration of the year, which was allowed to the administrator as further time to settle the estate; but the true construction of the statute is, that after the executor- or administrator has given notice according to the statute, “ he shall not be held to answer to the suit of any creditor of the deceased, unless it be commenced within four years of the. time of his giving bond, as aforesaid.”

The administrator having given the notice substantially as required by the statute, and the claim of the plaintiff not having been presented “ within four years of the time of his ^giving bond,” we are all of opinion that the claim is barred by the statute.

And it can not be claimed that the plaintiff is prejudiced in this conclusion, except by his own laches ; for it was perfectly within, his power, at any time after administration upon the estate existed, to present his claim to the administrator, and to secure its allowance, which would be equivalent to a judgment or its disallowance, which would clearly authorize him to commence a suit at any time-for the recovery of his claim, although the time for the settlement. of the estate had not expired.

If, instead of doing so, he has chosen to lay by, without the pre.sentation of his claim until after the expiration of four years from the date of the bond of the administrator, the latter having given the requisite notice, his loss is the result of his own negligence, aud ■ constitutes no cause of complaint against the law by which it is now barred.

Judgment affirmed.  