
    *Thomas Winstanley, Executor of Parsons v. W. and B. Savage and Others, Devisees of E. Butler.
    Non-residents cannot be made parties, unless they have property in the State. A legacy being due to them is not sufficient, especially where the legacy has been so long unpaid as to raise the presumption of satisfaction. Property gives jurisdiction. In some cases a creditor may join a legatee in a suit against an executor; but they cannot be sued alone, the executor must be made a party. Less than twenty years, where there have been great neglect and mutations of property, will raise the presumption of payment. The executor is the only proper representative of the estate of the testator, and is the party to be sued.
    Elizabeth Butler, the defendants’ testator, on the 20th of May, 1765, executed her bond to Robert Brisbane for £3,000, payable on the 1st day of January, 1766, with William Elliott, and James Parsons complainant’s testator, as her sureties. Mrs. Butler the same day gave James Parsons a bond of indemnity against the risk of his suretyship, reciting- that William Elliott was also a surety. On the 21st of November, 1775, Elizabeth Butler made her will and soon after died. By her will she gave all her estates in South Carolina and Georgia to Susannah Savage, Thomas Savage and James Parsons, and her brother William Elliott, and nephews William Elliott and George Parsons, in trust, one-half for the sole use of her daughter M. E. Savage, and the other half for the use of her grand-children; and the executors were appointed trustees. At the death of Elizabeth Butler she left the defendants Thomas Savage, William Savage and Benjamin Savage, her grand-sons, and the defendant Elizabeth, who intermarried with the defendant Thomas Heyward, the defendants Mary and her husband Joseph Clay, Susan Parsons and her husband R. É. Elliott.
    At the death of Mrs. Elizabeth Butler her bond to Brisbane had been reduced by payments to the sum of £308 Is. 5d. on the 9th of March, 1778, with interest at 8 per cent on £285 14s. 4d. Suit some time after was brought by Brisbane’s administrator against the complainant Parsons’ executor, as surety on E. Butler’s bond, whereby Parsons’s executor was compelled to pay, on the 18th of November, 1800, the balance due on the *bond, amounting to £1,018 2s. 8d.
    
    The executor of Parsons thereupon applied to the defendants, the devisees and legatees of E. Butler and of her daughter Mary Elliott Savage, the defendants being the grand-children of the said testator E. Butler, the obligor, to payor refund the sum of £1,018 2s. 8d. which had been so paid. Some of the legatees and devisees declared in writing their willingness to pay their proportions of the debt so due to the estate of Parsons. Some of the defendants were entitled to legacies under the will of Parsons, which legacies they had not yet received, and they consented that the executor of Parsons should retain their legacies in part payment. The bill stated that these legacies had been accordingly retained, but that no settlement had ever been made of the balance of the debt, and prayed that the defendants might be compelled to account and pay to the complainant Parsons, executor, the balance, in such proportions as the court might direct among the defendants.
    Some of the defendants being absent from and without the State, an order was published requiring them to come in, and answer or plead. Not coming' in, a decree pro confesso was taken out against them on the 15th of March, 1822.
    One of the defendants, Mrs. Heyward, who was served with process on the 8th of November, 1823, filed a plea, alleging that neither herself, nor her husband during his lifetime, had at any time within twenty years before the filing of the bill promised or undertook to pay any part of the money stated to be due to the complainant.
    Jan. 5, 1827. DeSaussure, Chancellor. In this case it was urged on the part of most of the defendants (against whom orders to take the bill pro confesso had been made) that they were not residents of this State, and were not ^amenable to its jurisdiction. It is very certain that non-residents cannot be made amenable to suits in this court, unless they have property in the State. 1 Atk. Rep. 19.
    It is a high act of sovereignty to compel persons to obey the judicial process of the court; and it would be very mischievous to the intercourse between nations for any of them to assume the power of calling all foreigners before their tribunals however remote their residence. It would produce a conflict of laws and jurisdictions, which would be intolerable. But it is contended for complainants that by our statute of the year 1784, creating the court of chancery, and prescribing its course of proceedings, non-residents may be made parties to suits in equity in this State. That act did not mean to introduce so new and dangerous a principle as the one contended for. It merely meant to regulate the proceedings in cases where non-residents could be made amenable to the jurisdiction of the country by holding property within it, which does, undoubtedly, give jurisdiction both at law and in equity : — at law, by the attachment of the property of the foreign debtor — in equity by the mode prescribed by the statute of 1784.
    It is, however, urged that these defendants really have property within this State, which makes them amenable to this suit. As to that fact I have very great doubts. It is not alleged to be lands or slaves or any visible or tangible properly, but certain legacies under the wills of Mrs. Susannah Parsons and of Mrs. Elizabeth Butler. Now, these legacies have either been paid and the parties have carried away the proceeds with them; or they have not been paid, and certainly cannot reasonably be expected tobe paid after the lapse of so many years. At least such a remote chance of being paid legacies, now barred by very great lapse of time, ought not to be *ma,Je ⅛*3 basis of a supposed right of property, which should subject the parties to such an onerous responsibility. They might renounce the legacies rather than be made so liable. I think, therefore, that the non-resident defendants are entitled to have the orders pro confesso set aside, and their names stricken out of the bill; and it is ordered accordingly.
    The question then is reduced to the inquiry, whether Mrs. Hey-ward, the remaining defendant, is properly sued, and is liable to the demand of the complainant?
    It is difficult to ascertain in what character Mrs. ITeyward is made a party to this suit. The object of this suit is to make Mrs. Elizabeth Butler’s estates liable for a debt due by her to the representatives of Robert Brisbane, but which the estate of Mr. Parsons, her security, has been obliged to pay. Mrs. Heyward is not an executrix of the will and estate of Mrs. Butler. She is therefore sued as a devisee or legatee of Mrs. Butler to oblige her to account for that estate, and to refund what she may have received in that character. But that is going too far. The remedy lies against the executors of Mrs. Butler in the first instance : and they might then within a reasonable time recover against the legatees who were improperly paid, in some cases the creditor may unite the executor and the legatees in the same suit, but it would be too hard on legatees to make them liable to such suits alone, after an enormous lapse of time, without the means of de-fence, or the power of showing that the debt had been paid as executors might do. On that ground I think the bill cannot be sustained.
    It is perhaps better to decide on the merits, and put an end to the litigation.
    Mrs. Butler executed her bond on the 20th of May, 1765, to Robert Brisbane, conditioned to pay £3,000 of the then currency of the colony on or before the first day of January, 1766, with William Elliott and James *Parsons as her sureties. Mrs. Butler executed on the same day a bond of indemnity to Mr. James Parsons for the L faithful payment of the debt to Mr. Brisbane when the same should become due. The debt was not paid by Mrs. Butler when it fell due (in January, 1766,) but various payments were made by the hands of Mr. Parsons and Mr. Savage down to the 9th of March, 1778. Now the right to have sued Mrs. Elizabeth Butler on the bond of indemnity occurred on the failure of payment on the bond of January, 1766, and no suit was brought from that time till the year 1820, a period of fifty-five years. That is doubly too long for such transactions to stand out. There would be no end to litigation. But the complainant contends that the calculation of time should be made from the time of the payment of the balance of the debt to Brisbane’s representatives in February, 1801, and that it is not quite twenty years between that period and the filing of the bill in this case. It wants four months to complete that period.
    The court is not exact as to twenty years. It is not a statutory provision, but an equitable application of the principle to cases long delayed. And if there have been great neglect and lapse of time and great mutations of the property, the court will not lend itself to support such State claims.
    It is therefore ordered and decreed that the complainant’s bill be dismissed with costs.
    Winstanley and Cross for complainants.
    Petigrtj for defendants.
   The cause was taken to the court of appeals. That court confirmed the decree of the chancellor for the *reasons assigned by the chancellor, “and for the further reasons that the estate of Mrs. Butler is not properly represented,” the executor, not the legatees and devisees, being the proper representative.

Decree affirmed.  