
    Atkinson, Ex. vs. Settle, Whitley and Smith.
    The bar created by the act of limitations of 1789, ch. 23, in favor of executors and administrators, will attach whether there has been an advertisement or not. The fifth section of that act is directory, not conditional.
    Settle, Whitley and Smith sued the plaintiff in error, before a justice of the peace. The warrant issued on 26th December, 1833, against William Atkinson, the plaintiff in error, as executor 'of Henry H. Atkinson. William Atkinson qualified as executor in October, 1830, more than two years before the institution of this suit. When the cause was tried in the circuit court, the judge charged the jury, that to enable the defendant to avail himself of the act of 1789, establishing a limitation to two years, he must show to the satisfaction of the jury from evidence, that he had given notice by advertisement as directed by the fifth section of the act. The advertisement was not proved to have been made, and the jury found for the plaintiffs.
   Catkon, Ch. J.

delivered the opinion of the court.

The charge was erroneous; the advertisement is not a condition precedent to pleading the act, as this court determined in Hooper vs. Bryant, 3 Yerger’s Rep. 1. The judgment will be reversed, and the cause remanded for another trial.

Judgment reversed.  