
    Zaccheus Estes vs. Joseph Wilkes, Administrator.
    The giving of notice of the appointment of an executor or administrator, required by the Rev. Sts. c. 66, in order to make the period of limitation of actions of creditors against him begin to run from the time of his giving bond, may be proved by other evidence, as well as by an affidavit filed in the probate office.
    Action of contract brought on the 23d of September 1858 on a promissory note made by the defendant’s intestate to the plaintiff on the 24th of September 1852, and payable on demand. Answer, the special statute of limitation of actions against executors and administrators.
    The parties submitted to the judgment of the court the following case : The defendant was appointed administrator and gave bond as such on the 15th of May 1854; and can prove (if competent, which the plaintiff denies,) that within three months from that day he duly posted proper and sufficient notices of his appointment in two or more public places in the town where the intestate last dwelt; but no affidavit of having given or posted such notices was ever made to the probate court or filed in the probate office.
    
      P. Simmons, for the plaintiff. By the Rev. Sts. c. 66, § 25, if, by reason of any accident or mistake, notice shall not be given of the appointment of any executor or administrator within three months after giving bond, “ or the evidence thereof shall fail to be perpetuated as herein before provided,” (namely, by affidavit filed in the probate office as required by § 2,) he
    
      may be ordered and allowed by the judge of probate upon his petition to give such notice at any time afterwards, “ in which case” (that is to say, in case of failure so to perpetuate evidence,) the time limited for the commencement of actions by creditors against him “ shall begin to run from the time of passing such order.” The commencement of the period of limitation is thus made to depend on giving notice of the appointment and perpetuating the evidence thereof.
    
      E. Ames, for the defendant.
    By the Rev. Sts. c. 66, § 3, “ no executor or administrator, after having giving notice of his appointment as prescribed in the first section, shall be held to answer to the suit of any creditor of the deceased, unless it be commenced within four ” (reduced by St. 1852, c. 294, § 1, to two) “years from the time of his giving bond,” except in certain cases of which this is not one. The special mode of proving the giving of notice, allowed by § 2, does not exclude proof by evidence competent at common law. As the administrator has not applied for a new order of notice, § 25 has no application.
   The Court gave Judgment for the defendant.  