majority">Saffold, C. J.

In the disposition of this case, it will be sufficient, to notice only the third assignment of error.

According to "my view of the record, issue was tendered, and taken, on the fact alleged, as a defence, that, according to the statute of non-claim, this demand was not presented to this defendant, within eighteen months after administration granted to him, or after his publication to creditors, to present their claims.

The law appears to be settled, that this statute, being intended to expedite the settlement of estates, and protect the heirs and distributees, as well as the executor or administrator — the latter is incompetent, to waive the requisition: also, that he can not deny, to those interested in the early, safe and economical adjustment of the claims against it, the benefit of this protection.a

These principles, I believe, were rather conceded, than contested, by the counsel for the defendant in error. They, however, insist, that this issue was a nullity; that, the creditor was not required, by the statute, to present the claim to the administrator de bonis non — that it was sufficient to have presented it to the executor, in his life-time; and this must be presumed to have been done, from the failure of the party, to plead this matter, in bar of the action, and from the executor’s letter, admitting the receipt of the *48money, and promising to pay it. But, in the present situation of the case, is not the position warranted, that the question, whether a presentment to the administrator de bonis non, was necessary or not, is not presented, or open to consideration? Issue having been taken 'on the fact, in the court below, it implied an admission by the plaintiff, that it was necessary to sustain the action.

Can the principle be conceded, that if issue betaken between the parties, on an immaterial fact pleaded as a bar to the action, (supposing this to have been such,) and from the evidence, the plea appear to be true, the court is authorised to instruct the jury, nevertheless, to find for the plaintiff? I hold the contrary : that, if immaterial, the plaintiff may resist it by demurrer, or motion to strike out, (according to its peculiar nature :) or, perhaps, though unusual in our practice, he might, as suggested, in the case of Simonton vs. Winter & Bowman,ahave treated the plea, as a nullity; and, instead of replying to it, proceeded, as though it had not been in.

But, can it be reasonably inferred, from the state of the record, and the practice in our Courts, that this was the view taken of it, either by the plaintiff or the Court below ? In the precise language of the transcript, after the three pleas had been filed, the parties take issue, in short, by the words replication and issue, on the “second pleas,” signed by the plaintiff’s attorney.

It also reads, that afterwards a jury was sworn to try the issue. Yet it must be observed, that the first plea was the general statute of limitations, that no promise had been made by the testator, or either of *49his representatives, within six years before suit commenced.

On this it was necessary- to take issue, and it was treated by the Court and parties, as if done; indeed, this plea appears to have attracted the principal attention of the Court. When requested to charge, first on the second, and afterwards on the third pleas, the Judge, by way of response to each, charged in reference alone to the first, that a promise by the executor, at any time within six years before the commencement of this suit, bound the administrator de bonis non, and entitled the plaintiff to recover.

If the third plea was disregarded, the second, which alone was mentioned in the replication, (according to the transcript, which, in this, I suppose to be incorrect,) was equally so. The record does not shew that any objection was urged against the validity of either of these pleas, except that the promise of the executor, within six years, satisfied all objections. I proceed on the supposition, that the words second pleas, in the replication, were intended for several pleas, and is probably so in the original.

In this, or any other, view of the case, there was error in refusing to charge the jury, on request, that, if the evidence established the truth of the second or third pleas, they must find the issue taken thereon, in favor of the defendant.

Such is believed to be the correct rule of practice regardless of the materiality of the issue: it must be found according to the facts in evidence. What would be the effect of such a finding, is a differ*50ent question; one which is not presented by this record, and therefore will not be examined on this occasion.

The judgment is reversed, and the cause remanded.

Hitchcock, J. not sitting in this cause.

15Mass.R 6, and Authorities.

5 Peters, 148

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