
    Joseph Sewall et al. versus Lawson Valentine.
    The statute of limitations respecting suits against an executor or administrator begins to run from the time of the defendant’s accepting the trust, and not from the time of giving public notice of his acceptance.
    In pleading this statute, it is sufficient for the defendant to allege that he posted up notifications of his appointment e< in two public places in the town,” &e. without specifying the places.
    In such plea it is sufficient to allege generally, that the defendant gave a bond to the judge of probate for the faithful administration of the estate of the deceased, according to the form of law in that behalf provided, without setting out the bond.
    Assumpsit against the defendant as administrator of the estate of Samuel Valentine, junior The action was commenced on the seventh day of March,'!827.
    The defendant pleaded, “ that more than four years next before the commencement of this suit, to wit, on the fourth day of March, 1823, at a Probate Court then held at Cam bridge, &c. he was by the judge of probate of the county of Middlesex, appointed administrator, &c. and then and there accepted that trust, and then and there gave bonds to the said judge, with two sufficient sureties, conditioned for his the said Lawson’s faithful administration of the said goods and estate of the said Samuel, according to the form of the law in that behalf provided, all which by the records thereof in the said Court of Probate remaining appears that the judge directed him to give public notice of his appointment to and acceptance of the trust by posting notifications, &c. and “ that afterwards and within three months from the time of his said appointment to and acceptance of said trust and also within three months from the time of making said order or direction by said judge as aforesaid, he did, in pursuance of the statute, &c. and of such direction, &c. at Hopkinton, &c. to wit, on the fifteenth day of said March, make known his appointment to and acceptance of said trust, and give notice thereof, as the law requires, by posting up two notifications in two public places in said Hopkinton in the form following, &c. and by inserting a notification in the form aforesaid, three weeks successively in the newspaper printed at Boston by Benjamin Russell, to wit,” Stc. (specifying the newspapers published on the eighth, fifteenth and twenty-second of. March,) “ and made return thereof on oath to the said probate office within seven months from said fourth day of March, to wit, on the eighth day of April,” &c
    
      March 29th.
    
    The plaintiffs demurred specially, assigning for causes of demurrer : — 1. That the plea does not aver, that when this suit was commenced, the term of four years had elapsed from the time when the defendant gave notice of his appointment as administrator : — 2. That it does not state in what public places in Hopkinton the two notifications were posted up : — and 3. That it does not set forth the form of the bond given by the defendant as administrator.
    
      Hubbard and Seioall,
    
    in support of the first cause of de murrer, referred to St. 1788, c. 66, § 3, which requires a suit against an executor or administrator to be commenced “ within the term of three years next following his giving bond for the faithful discharge of his trust,” and to St. 1791, c. 28, § 2, which provides that the suit shall be commenced “ within the term of four years from the time of his accepting that trust and they contended, that as to creditors, the time of accept anee is the time when notice of it is given, so that they may present their claims against the estate of the deceased, From obiter dicta in our reports it should seem that this has been the practical construction of the statute. Ex parte Allen, 15 Mass. R. 61; Hawes v. Shed, ibid. 8; Rogers v. Goodwin, 2 Mass. R. 475.
    2. The places in which the notifications were posted up should be stated with certainty, and not in general terms ; in order that it may be determined whether they are public places As the plea now stands, it throws the burden on the plaintiff of ascertaining where the notifications were posted up, (a fact which is within the knowledge of the defendant and should properly come from him,) and of replying that they were posted up in this and that particular place, and that these were not public places. Willington v. Stearns, 1 Pick. 497; Slade v. Drake, Hob. 295; 1 Chit. PI. 240; Com. Dig. Pleader, C 22, E 5; Oystead v. Shed, 12 Mass. R. 506; Spear v. Bicknell, 5 Mass. R. 125; 1 Saund. 49; Halsey v. Carpenter, Cro. Jac. 359; 1 Saund. 117, note 1; Amory v. Williams, 14 Mass. R. 20; Eddy v. Knap, 2 Mass. R 154; Whitman v. Tyler, 8 Mass. R. 284; Tate v. Anderson, 9 Mass. R. 92; Davis v. Maynard, ibid. 242; Lancaster v. Pope, 1 Mass. R. 86; Service v. Hermanee, 2 Johns. R. 96; Currie v. Henry, ibid. 433; Cruger v. Cropsey, 3 Johns. R. 242; Frary v. Dakin, 7 Johns. R. 75.
    
      June 21st.
    3. The defendant must show that he gave a legal bond, and the question of legality should be submitted to the court by setting out the bond. See Bac. Abr. Pleas, &c. I 3, and some of the authorities before cited.
    
      Osgood, contra,
    
    in regard to the first point, relied upon the phraseology of the statute of 1791. He cited also Heard v. Meader, 1 Greenl. 156; Scott v. Hancock, 13 Mass. R. 162.
   Parker C. J.

delivered the opinion of the Court. As to the first cause of demurrer, viz. that the defendant has alleged that the action was not commenced until four years next after his acceptance of the trust of administrator, instead of alleging that it was not until four year’s next after he gave notice in the manner pointed out in the statute, we think the allegation is right. The words of the statute of 1788, c. 66, are explicit, that the time of limitation shall run from the giving bond in the probate office. And the statute of 1791, c. 28,-is equally explicit, that the time shall run from the acceptance of the trust [See Revised Stat. c. 66, § 3.]

In the case of Ex parte Allen, 15 Mass. R. 61, it is said cursorily, that the suit should be commenced in four years from the time of giving notice ; but the construction of the statute was not then in question, and very probably the remark was made without looking at the statute, for the point was wholly immaterial in that case. The words of the statute are too clear to require or admit of explanation.

As to the second cause of demurrer, to wit, that the plea doe; not aver at what places in Hopkinton the advertisements were posted up, but only that they' were posted in two public places in that town, we think the averment sufficient. The defendant might have denied that they were so posted, and then on issue, the fact whether the places were public or not, would have appeared in evidence. It has not been the practice to plead a defence of this kind so minutely ; but it has been thought sufficient to aver that the defendant was duly an-pointed administrator, and gave bonds and notice according to law. This plea contains all and a great deal more than is usual.

In the case of Brown v. Anderson, 13 Mass. R. 201, the plea is general, and not. objected to on that ground. In 1 Green]. 156, the plea is of the same kind, and such has been the general practice. So much strictness as is required in an officer’s return on the sale of property, is not necessary, for the party interested may generally learn at the probate office in what manner notice has been given ; and there is also another form of notice in the newspapers, from which it may be presumed he obtained knowledge of the fact.

And as to not setting out the form of the bond in the plea, which is the third cause of demurrer, it has never been required and would be useless, for the bond is on file in the probate office, and, if not pursuant to law, the defendant may avail himself of the defect by denying that such bond as the law requires was given.

Leave to withdraw the demurrer on terms. 
      
       See Burditt v. Grew, 8 Pick. 112.
     