
    Joseph Green versus Moses Gill, Executor.
    Parole evidence may be admitted that an executor has posted up notifications of his appointment, &e., pursuant to Stat. 1788, c. 66, § 1, without producing one of the original advertisements, or a copy; and such evidence will be good to bar a recovery in an action commenced after four years from the executor’s giving bonds.
    To an action of assumpsit, brought against the defendant, as executor of the last will and testament of Moses Gill, Esquire, de ceased, the defendant pleaded in bar, that the action was not commenced within four years after his acceptance of the said trust of executor.
    The plaintiff
    replied that at the time of the probate of the will, and the acceptance by the defendant of the trust of executor, the judge of. probate directed him to give public notice of his appoint ment to and acceptance of said trust, by posting up notifications thereof at two or more public places in the town of, &c., and by causing the same to be published in certain public newspapers within three months, and to make due return of an original advertisement, or a true copy thereof, on oath, within seven months from said time; and that the defendant did not make known the same by causing notifications thereof to be posted * up in said town, agreeable to said order, or in any other way, nor by publishing the same in the said newspapers, or in any other manner; nor did he ever make any return, &c., agreeable to said direction.
    The defendant,
    in his rejoinder, averred the giving the several notices directed within three months after, &c., and tendered an issue to the country, which was joined by the plaintiff.
   Upon the trial of this issue before the Chief Justice, at the sittings here after this term, the defendant undertook to prove, by parole testimony, that he did duly post,. up, in the town of Princeton, (the place where the testator had his habitancy at the time of his death,) advertisements in due form of law, notifying his appointment to and acceptance of the trust of executor of the last will and testament of the said deceased. The plaintiff objected to the admission of such parole evidence, without producing to the jury one of the original advertisements, or a copy thereof. The chief justice overruled the exception, and admitted the evidence, and directed the jury that the evidence was legal and proper to authorize them to find the issue on trial in favor of the said executor, without the production of such original advertisement, or an original copy thereof.

A verdict being accordingly rendered for the defendant, the action stood continued nisi for the consideration of the said objection ; and at the following March term in Suffolk, the opinion of the Court was delivered to the following effect.

By the statute of 1788, c. 66, § I, it is provided that every executor or administrator, undertaking the trust, shall cause notifications thereof to be posted up, within three months, in the town where the deceased was resident and had his habitancy at the time of his death; and shall give such further notice as the Court of Probate shall direct: “an affidavit of the executor or administrator, made and filed in the same Probate Court, within seven months after undertaking that trust, accompanied with an original notification, * (or a copy thereof,) recorded in the probate office, shall be admitted as evidence of the time, place, and manner notice was given. By § 3, of the same act, no executor or administrator shall be held to answer to the suit of any creditor of his testator or intestate, unless the same shall have been originally commenced within three years (extended to four years by statute of 1791, c. 28) from his giving bond for the faithful discharge of his trust; with certain exceptions, not bearing on the case at bar, provided such executor or administrator shall have given the public notice required by the act.

In the case before us, the defendant proved that he had posted the notifications prescribed by the statute, but it did not appear that he had made and filed an affidavit of such posting in the probate office. This particular provision of the statute was introduced for the convenience of the executor or administrator. Other evidence of the fact may properly be received, and, if satisfactory to the jury, is of the same avail.

Judgment on the verdict.  