#### *Joseph Cumming vs. Catharine Berry and*others,

A court of equity is bound to apply the bar of the statute of Limitations* to a *legal*demand, in the same manner as a court of law would apply it

The sec. 19 of the stat. 9 Anne, c. 20, preventing persons who were beyond seas when the cause of action accrued, froth pleading the statute of Limitations, does not apply to foreigners constantly residing abroad, but to citizens of this State.

*Before*Dunícín, Ch. *at Charleston, June,*1843.

The facts of this case will be sufficiently understood from the decree of the Chancellor, which is as follows:

In August, 1825, the complainant, a merchant of Savannah, shipped to Wilmington, North Carolina, a quantity of bagging for sale. It was consigned to J. A. Berry *&*Co. commission *?merchants of that place, and was invoiced at one thousand, eight hundred and forty-eight dollars, 60 cents.

A letter was introduced in evidence from James A. Berry to the complainant, dated 14th Nov. 1825, in which he says, among other things, “ Your bagging arrived and was disposed of prior to my failure, which was sudden and unexpected, owing to failures at the North, (fee. I am now reduced, with a young family, to penury and distress, and am divested of every cent I had in my possession, by my creditors.” He concludes by saying, that he has now nothing else to offer but his body, which he is willing at any time to surrender.

On the 26th August, 1828, James A. Berry forwarded a written notice to the complainant, as one of his creditors, of his intention to apply to the Court of Pleas and Quarter Sessions, of New Hanover county, North Carolina, to be admitted to take the oath prescribed for the relief of Insolvent Debtors, by the Act of 1822, in order that the complainant might, if he thought proper, attend, and show cause why the benefit of the Act should not be extended to him.

By a transcript from the records of the court above mentioned, it appeared that at the September sessions, 1828, James A. Berry and William A. Berry were both admitted to the benefit of the Insolvent Debtors’ law; a jury having found that they were not worth forty shillings, and had been guilty of no fraud, or concealment of property, and they having taken the oath prescribed by the law.

Soon after the failure of James A. Berry, he removed into the country, and in the latter part of his life to Smithville, N. C. where he was employed as a clerk by the engineer on the public works, and died in November, 1832.

Some five years after the death of James A. Berry, certain proceedings were instituted in the Court of Chancery for Charleston district, touching the title to certain real estate in the city of Charleston, and for partition of the same. In that suit, Edward D. Winslow and others were plaintiffs, and the heirs of the said James A. Berry and others were defendants. The cause was heard by Chancellor Harper, in January, 1839, and by his decree it was determined, among other things, that by the deed of marriage settlement, executed May, 1809, between Edward Winslow and the mother of James A. Berry, a remainder in fee in one-fifth of the premises vested in the said James A. Berry, .expectant on the life of his mother, who survived her son, but *116departed this life in 1837. Neither the complainant nor any other creditor of James A. Berry was party to this decree, nor does it appear necessary that they should have been.

By a subsequent order of this court, a sale of the premises was directed for the purposes of partition, and by the answer or statement of Mr. Gray, one of the Masters, it appears that the share of the proceeds to which the heirs of James A Berry are entitled, amounts to about six thousand dollars.

The bill charges that no part of the complainant’s demand against James A. Berry has been paid or satisfied ; that his interest in this real estate in the city of Charleston was improperly withheld from the knowledge of his creditors, when he was admitted to the benefit of the Insolvent Debtors’ Act in North Carolina, and that the same should be subjected to the payment of his just debts ; and prays, among other things, that the amount due to complainant may be declared a debt binding on the estate of the said James A. Berry deceased, and may be decreed to be paid out of that which has been so declared by the decree of this court, or that it may be paid by the defendants, who are the heirs at law of the said James A. Berry deceased.

The answer of Catharine Berry, the widow of James A. Berry, states, amona: other things, that her husband transacted business with his brother, William A. Berry, as commission merchants in Wilmington, N. C. under the name of J. A. Berry <fc Co., from the Spring of 1824 until the firm was dissolved by insolvency, in September, 1825, but she denies any knowledge or belief of his having transacted any separate business. She states further, that the books of J. A. Berry *&*Co. have been lost or destroyed, so that she can give no information which they might be supposed to contain.

Several grounds have been taken in opposition to the prayer of the bill, which it may be as well to consider in their order.

It is said that the contract of the complainant was with James A. Berry *&*Company, and that William A. Berry, one of the firm, is still alive.

Although it was admitted at the hearing, that the original consignment was to J. A. Berry *&*Co. it is very doubtful whether, after the letter of James A. Berry to the complainant, in November, 1825, and the notice in August, 1828, he, or any person claiming under him, would be permitted to question his'individual liability for the proceeds of the consignment.

The terms of that letter have no reference to the firm, its re*117sponsibility or resources, but amount to a distinct admisssion that the property of the complainant had been sold by the writer, who recognized his obligation, and regretted his inability to discharge it. But apart from this, it is very clear from the testimony, that in the Spring of 1824 William A. Berry was little more than nineteen years of age. “ When one of two contracting parties is an infant, the action may and should be brought against the adult only.” Ch. on Cont. 34. In *Burgess vs. Menill,A*Taunt. 468, the court says, “ This a binding contract as to the adult, though void as to the infant; and it is extremely proper to say that the plaintiff may safely overlook the privity of the infant, as to whom the contract is nugatory, and may describe it as a contract made by the adult contractor only.” “ We are of opinion that the demand must be overruled, and that the action is well brought against the adult only.”

Then the defendants insist that, as the complainant was no party to the decree of 1839, he cannot derive any benefit from it, but must prove the title to the premises in James A. Berry.

Without inquiring how far it is competent for the defendants now to call in question the matter adjudicated by the decree, the court is of opinion that the evidence adduced in that cause established the title of James A. Berry, and that his mother was well barred of her inheritance by the deed of 1809, and the decree of the court, sanctioning the settlement, to which decree she must, for the reason stated in the judgment of Chancellor Harper, be presumed to have been regularly a party.

It is further urged that, “ upon the case stated in the bill, the complainant has a plain and adequate remedy at law, by an action of debt or assumpsit against the defendants, as heirs of James A. Berry.”

By thé Act of 5 Geo. 2 c. 7, A. D. 1732, it is declared that “the houses, lands, negroes, and other hereditaments and real estates situate or lying within any of the said plantations, (his Majesty’s plantations and colonies of America,) belonging to any person indebted, shall be liable to and chargeable with all just debts, duties and demands, of what nature or kind soever, owing by any such person to his Majesty or any of his subjects, and shall and may be assets for the satisfaction thereof, in like manner as real estates are by the laws of England liable to the satisfaction of debts due by bond or other specialty, and shall be subject to the like remedies, proceedings and process, in any court of law or .equity in any of the said plantations respectively, for seizing, *118extending, selling or disposing of any such houses, lands, ne-groes, and hereditaments and real estates, towards the satisfaction of such debts, duties and demands, (fee. in like manner as personal estates in any of the said plantations respectively are seized, extended, sold or disposed of, for the satisfaction of debts.” 2 Stat. 570.

' By the law of England, the heir is as much debtor upon the bond as the obligor, because,” says Mr. Plowden, “ the obligor ■ has bound as well his heir as himself.” An heir must be charged in the *debet*as well as in the detinet; and if judgment be entered against him by default, it may be personally. *Davy vs. Pepys,*Plowd. 440. *Kinaston vs.*Clark, 2 Atk. 204. But on a judgment recovered against the ancestor, or a recognizance acknowledged by him, the heir is chargeable as *tenant of the lands,*and not as heir, and an action of debt does not lie against him on the judgment or recognizance, as it does on the bond of his ancestors, but a *scire facias*only to have execution of the ancestor’s lands in his hands.

Another reason given is, that the heir is not named either in the judgment or recognizance. 2 Saund. 7, n. 4. Although the heir could not plead assets in the hands of the executor where suit was brought on the bond of the ancestor, yet he might, by proceeding in the court, be reimbursed from the personal assets ; and for this reason, as remarked by the Chancellor in *Vernon vs.*Valle, 2 Hill Ch. 260, *“*suits against the heir appear to have been more common in equity than at law.”

It may be observed, that the Act of Geo. 2 gives no action ex.pressly against the heir, but declares the real estates nf the debt- or to be liable for all his debts, in like manner as real estates by the laws oí England are liable for debts by bond or other specialty, and are liable to like process in any Court of Law or Equity, for seizing, *&c.*in like manner as personal estates may be seized, <fcc. for the satisfaction *of*debts.

If it were necessary for the decision of this case, I should hold that under the true construction of the Act, this was the complainant’s proper forum, and that the lands in the hands *of the*heir could only be made available in the same manner as personal estates in the hands of legatees or distributees, to wit: by showing a deficiency of assets in the hands of the personal representative, or his insolvency, or some such cause. See *Prescott vs. Trescott,*l. M’C. C. R. 430. It may be added that in England the heir is one person, but in this country they are *119numerous, and the estates derived in different proportions, and this would be the appropriate tribunal to fix the extent of their several liabilities.

But the complainant has no remedy at law. The real estate embraced in the deed of 1809 was all sold by the order of this court, in February 1841, about three months before filing this bill, for about the sum of twenty-five thousand dollars. Of the proceeds the master states the heirs of James A. Berry are entitled to $6390. He also states that they were purchasers to an amount exceeding their share. I do not think this latter circumstance material. They are entitled to the fund — and whatever portion they have bought, whether the whole or a part, they hold as any other purchasers at the Master’s sales, and not as heirs. The defendants all reside beyond the limits of ’ this State, and this fund, while in the custody of the law, could hardly be regarded as the subject of attachment. *Bowden vs. Schat-zell,*Bail. Eq. 364.

But, at the common law, if the heir had *bona fide*aliened the lands which he had by descent, before an action was commenced against him, he might discharge himself by pleading that he had nothing by descent, *at the time of suing out the*writs, and the obligee had no remedy at law, though in equity the heir was responsible for the land. 2 Saund. *ut supra. Coleman vs. Winch,*1 P. Wms. *777.*To remedy this, the Act 3 and 4 W. and M. c. 14, was passed, by which the heir was rendered lia-, ble, by an action of debt, for the value of the land as aliened. But the Act of *5*Geo. 2 renders only the land liable, and if the land has been aliened before suit brought, the party is left to the same remedy as he had in the case of a debt by specialty prior to the Act of 3 and 4 W. and M., to wit, his bill in this court.

The remaining objection to the plaintiff’s recovery is that “the debt, duty, or demand, which the complainant seeks by this bill to recover, accrued, if at all, more than four years before the filing of this billand the defendants, therefore, rely on the statute of limitations of this State and of North Carolina, in the same manner as if the same were set forth by plea.

In answer to this plea or defence, the stat. 9 Anne, c. 20, 2 Stat. 432, was brought to the view of the court. But the provisions of the exception manifestly refer to persons who have left, the State, were absent when the action accrued, and after-wards *returned*to the State. The Act allows the same time to *120bring suit “after their return from beyond seas,” as was originally allowed from the time of action accrued. Neither the original debtor, nor the defendants, could fall within the purview of this Act, nor is the case within the terms or the reasons of the exception.

But proceedings in the Court of Equity are not within the terms of the statute of limitations, and the court adopts the rule of the statute only by analogy. In *Bond vs.*Hopkins, 1 Sch. and Lef. 428, Lord Redesdale says, “the positive enactment has nothing to do with the case.” The question is whether it (the statute,) 'shall operate in a case not provided for by the words of the Act, and to which it can only apply so far as it governs decisions in the Courts of Equity; that is, whether it shall prevent a Court of Equity from doing justice according to good conscience, when the equitable title is not barred by the lapse of time, although the legal title is so barred.

In Nov. 1825, the debtor acknowledged his indebtedness, avowed his utter destitution, and inability to satisfy the complainant, and in September, 1828, still recognizing the complainant as his creditor, he was admitted to the benefit of the insolvent laws of North Carolina, on taking the oath that he was not worth forty shillings. He lived afterwards in a subordinate situation as a clerk, and died in November, 1832. The answer of his widow states that he left no will, and that there had been no administration. The insolvent law of North Carolina was not, it is believed, brought distinctly to the notice of the court, but it would seem, from Griffith’s Law Reg. 3 vol. 209, that after taking the poor debtor’s oath, the person or body of the debtor was protected *from*arrest at the suit of any creditor to whom notice, was given.

Doubtless it was true, as stated in Berry’s letter, that “his creditors had received all that he was possessed of,” and the finding of the jury may have been correct in reference to the matter submitted. They were certainly sufficient to satisfy the complainant of the inutility, if not cruelty, of any legal proceedings for the recovery of his debt, if he had been at liberty to resort to them.

In October, 1837, the life tenancy of Mrs. Winslow terminated. The fee, which J. A. Berry had, vested in possession. If he had been alive, had filed a bill for his share of the estate, and in January, 1839, a decree in his favor, declaring his rights, had been pronounced, it seems difficult to contend that this pro*121perty would have been protected, or that the claim of the complainant could have been successfully resisted on the plea of the statute of limitations. His omission to surrender this property to his creditors in 1828, his representation, substantially, that he had no such property, whether he was conscious of it or not, had all the effect of a fraud on his creditors, and would at least be sufficient to render it against conscience that he should now avail himself of the statute of limitations. I do not perceive that his heirs can be in any better situation. It may well, I think, be inferred from the statements, that the complainant was ignorant of the fact on which his claim to relief arises, until the decree of 1839, and if it be not sufficiently averred, the court would permit him now so to amend his bill. *Prescott vs. Hubbell,*1 Hill C. R. 217; *M’Mullin vs.*Brotan, 2 do. 461.

It is ordered and decreed that one of the masters take an account of the amount due to the complainant, and that the same be paid from the share of the proceeds of the real estate in the custody of the court, to which the heirs of James A Berry, deceased, have been declared entitled.

The defendants appealed, on the following grounds.

1. That the plaintiff’s remedy was at law.

2. That William A. Berry should have been joined as a defendant.

3. That the plaintiff is barred by the statute of limitations.

4. That James A. Berry was not seized of a vested estate in remainder.

Petigru, for the appellants.

*A. G. Magrath,*contra.

*Ouria, per*JohNstoN, Ch.

Without considering the other points in this cause, we are of opinion the bill should be dismissed on the statute of limitations alone.

The debt due the plaintiff is the only ground of the equitable relief claimed by him, and if that is barred the remedies consequent upon it must fall to the ground.

This debt being a legal demand, the statute must be applied not by analogy but directly, in the same manner as a law court would apply it, if the debt were sued on in that tribunal.

The statute makes no distinction between demands due by persons resident abroad and those owing by citizens resident in this State, and to draw such a distinction would be to create an *122exception where the statute draws none, and that, in this case, without reason or propriety.

Nothing need be added to the remarks of the Chancellor, .to shew that the statute of Anne was not intended to apply to foreigners constantly residing abroad, the tribunals of *whose*countries afford a continual and unembarrassed opportunity to their creditors, but to citizens forsaking the tribunals to which they are naturally amenable, and where they might be expected to be found, and going abroad, probably without establishing any fixed domicile where they might be impleaded. These, when they return to their own forums, shall not take advantage of the suspension wrought by their own dereliction. But no such reasoning applies to those who never owed amenability to our courts.

There was never, so far as we can see, any impediment in ' the way of the plaintiff’s establishing his demand against James A. Berry in North Carolina, and thus imparting to it a rank which would have freed it from the operation of the statute; for although, by taking the benefit of the insolvent law of that State, he seems to have escaped a liability to be arrested, he was liable to be *sued.*

When these privileges were open to the plaintiff for upwards of seven years during the life of Berry, and he neglected them, and when to this neglect he has added the omission to take any step from the date of his debt, a period of now nearly twenty years, the court sees such evidence of laches as to fully authorize it to apply the bar of the statute. It feels, at least, that the circumstances are not such as should induce the application of the statute of Anne, by an equitable construction, to the case of a foreign debtor, and thus create an exception to the statute of limitations which is not made on its face.

It is ordered that the decree be reversed and the bill dismissed.

The whole court concurred.