1. It is insisted, that the statute interposes an absolute bar; and that administrators once having given notice of the disallowance of a claim, that notice is irrevocable.
We do not think that this proposition can be sustained.
The 17th section of the statute (tit. 32.) enacts, that whenever any creditor shall neglect to exhibit his claim within the time limited by the court of probate and notice thereof given, “ he shall be forever debarred of his demand against such estate.” The 18th section provides, that where a claim has been exhibited within the time limited, and is disallowed by the administrator, and notice thereof given, if the creditor shall not, within six months after such disallowance and notice, commence a suit, &c. “ he shall be forever debarred of his claim against such estate.” Now, it is said, that the language employed in both these sections of the statute, is precisely the same; and that in both cases, the bar is absolute. And a number of cases have been cited, to show, that an administrator has no authority to allow or pay a claim, that was not exhibited, within the time limited by the court of probate : that he has no power to remove the bar, which the statute has interposed. And in analogy to these cases, it is insisted, that *164when an administrator has once disallowed a claim and given .notice, he has no authority to subsequently allow the claim, or to revoke the notice.
There is this very plain and obvious distinction between the two cases. In the one, the statute creates the bar ; in the other, it is created by the act of the administrator. And it is entirely in his discretion, whether he will, by disallowing a claim and giving notice, lay a foundation for the statute to run against the demand. If, after the statute has attached, the administrator should undertake to remove the bar, the cases would be parallel; and the authorities cited would be applicable.
But until the claim is barred, the matter is wholly under the discretion of the administrator; and it is a most extravagant claim, that he may not, in the exercise of that discretion, review his own decision, and revoke the notice which he has given. Suppose, after the disallowance, the administrator should be convinced, that the claim is strictly just and legal; may he not allow it ? And not only allow, but pay the demand ? And would this be a payment in his own wrong ; and subject him on his probate bond 1 The argument irresistibly leads to this conclusion ; that if an administrator has once refused to allow a claim, and given notice, he has no alternative but to subject the estate to the expense of a litigation, however well he may be satisfied of the justice of the demand. Such, in our opinion, is not a sound construction of the statute.
2. It is objected, that this should have been the joint act of both administrators ; and that one is not competent to revoke a notice once given.
This objection has not been much insisted on; and it is entirely without foundation. One administrator may surely receive a claim ; and may either pay or reject it. The plea alleges, that one administrator disallowed the claim before us, and gave the notice. Would not this notice have been binding on the plaintiff? And if one administrator may refuse a claim, may he not also waive the refusal ? The point is too clear for argument.
3. It is insisted, that the waiver (if there be one) is not well pleaded ; or, in other words, that the replication is insufficient.
This part of the case is not, perhaps, entirely free from doubt. But it shoidd be remembered, that the objection comes after verdict; and, of course, all mere matters of form are cured, by *165the finding of the jury. The question is, whether enough be stated in the replication, to show a waiver of the disallowance. of the claim, and notice. It is averred, that the administrator requested the plaintiff not to sue ; that he expressed his belief that the demand would be compromised ; and that, at the special instance and request of the administrator, the plaintiff did delay the commencement of his suit. Now, we are inclined to think, that this conduct of the administrator was equivalent to an express declaration that he would not insist upon the disal-lowance and notice ; and that from these facts the jury would have been justified in finding a waiver.
We are, therefore, of opinion, that the motion in arrest should be overruled ; and that judgment be rendered in favour of the plaintiff.
In this opinion the other Judges concurred.Judgment for the plaintiff.