
    CHARLOTTE,
    MARCH TERM, 1818.
    ARCHIBALD ROANE,) ROBERT WHYTE, [-Judges. JOHN HAYWOOD, )
    Pea v. Waggoner and Others.
    [ Administration. — Debts paid by Representative out of his own Means. — Substitution. — Limitation. — “ Glaim.” — Dill for Reimbursement.]
   E.oane, Judge.

This is a bill brought by Pea, the administrator of Tate, against his heirs. The plaintiff alleges, that in the course of his administration he had paid debts due by the intestate to a considerable amount more than the value of the assets which came to his hands, and prays to be reimbursed out of the real estate which descended to the heirs.

The defendants say in their answer, that the intestate did not assume within three years before the commencement of this suit, and claim the benefit of the act of limitation of 1715, ch. 27.

They also say that neither the complainant, nor those alleged by him to have been creditors, have exhibited their demands, or made their claims, or brought their suit or suits against the defendants, within seven years after the death of Tate, the intestate, and claim the benefit of the act of 1715, ch. 48, § 9. Tate died in March, 1803. The complainant procured letters of administration in May following.

Both acts relied on by the defendants were passed in the same year. In the first, specialty contracts are not included, and might be recovered, unless by long delay the presumption should arise that they had been paid; and lands descending to the heir would have been liáble to satisfy the debt of the ancestor, in case * the heirs were named in the bond, and the heirs would not have been discharged by a shorter lapse of time than the ancestor.

But it is alleged that the heir is relieved from this liability by 1715, ch. 48, § - 9, unless claim be. made against him by the creditor in seven years after the death of his ancestor. It is true the expression used by the Legislature is broad and comprehensive. It creates a bar without respect to the nature of the demand or the disability of the creditor to sue. There is no reservation for the case of infants, femes covert, or for those whose debts, by the terms of the contract, had not become due before the expiration of the term. And where no. exceptions are made in the law, the court cannot make any. But still, in this as in other cases, the words used should be considered with reference to the subject matter respecting which they are used, and not be extended beyond it. In this act, the Legislature seems to have only in view “ the rules to be observed in proving wills, and in granting letters testamentary and of administration, and to regulate the conduct of.executors and administrators.” With reference, then, to that subject, the ninth section requires all creditors, as well infants, &c., as others; as well those whose debts are not then due, as those whose debts are due, to make their claims in seven years, or be barred. In the case of administrators, this bar extends not only to creditors, but to the distribu-tees or next of kin. ' If they do not recover their money in seven years, the surplus must be paid to the church wardens for the use of the parish. No intimation having been given in the act that heirs were intended, they seem to be left in the sanie situation with respect to creditors, as-if the act had not passed. The conclusiveness of this bar, it may be observed, is considerably.relaxed by the act of 1784, ch. 28, in which this section is quoted verbatim, and then follows a direction “ that so soon as an administrator hath finished * his administration on such estates, and no creditor shall make any further demand, the residue shall be deposited in the treasury, there to remain without interest, subject to the claim of creditors and the lawful representatives of the deceased, without being subject to the limitation of time.” By this act, the surplus which had not been demanded by the next of kin, even after the payment into the treasury, was subject to the claim of creditors without limitation. How is he to get the money ? Certainly not by suit against the treasurer, but against the administrator, who cannot plead the statute but by pleading fully administered ; the creditor may proceed to judgment, and receive his money from the treasurer.

. By the act of the 5th of George II. ch. 7, all real estates in the colonies were made liable to and chargeable with all debts of every description, and to be assets for the satisfaction thereof, in the same manner as real estates were liable for the satisfaction of debts due by specialty, and subject to the same process of execution as personal estate. In England, as well as here, the personal estate was to be first applied, and if insufficient, the real estate was to be assets for the discharge of debts. In conformity to this principle have all our laws been framed. The personal estate, in every instance, is first liable before the real. By the act of 1784, ch. 11, directing the mode of proceeding against the real estate, when the personal is insufficient, it is strongly implied that the suit must first be prosecuted to judgment against the personal representative, and the personal assets be exhausted, before the real estate can in any instance be chargeable in the hands of the heir, who is to be made a party by sci. fa. It is true there are no negative words declaring that a creditor shall not sue the heir in the first instance. As all demands are placed in this respect upon an equal footing, and from the tenor of this act and all other acts securing the l’eal estate so long as any personal * can be had, it would seem that where there is a personal representative, the heir cannot be compelled to pay the debt of the ancestor until the demand be ascertained by judgment against the personal representative, and a deficiency of assets in his hands. And if he has paid over to the legatees or dis-tributees, the creditor must proceed against them on their bpnds given to refund, and not against the heir.

The act of 1789, ch. 23, repeals all laws coming within the purview and meaning, and, as I believe, repeals the ninth section of 1715, ch. 48. It is on the same subject matter, and makes provisions wholly inconsistent with it. It prescribes a limitation, but different from the other in its commencement and duration. In the former the time begins to run from the death of the debtor; in the latter, from the qualification of the executor or administrator. The former does .not terminate till seven years after its commencement; the latter in two or three years, as the case may be. In the former, there are no exceptions whatever, and the court can make none ; in the latter, there are exceptions of infants, &c., who have one year after the disabilities are removed. There is also an exception in favor of the creditor who makes his demand and delays suit at the request of the executor or administrator. The court seeing these exceptions, by the known rules of construction can allow of others of a similar nature.

It has been insisted that if this act repeals that of 1715, and if the latter cannot be pleaded by the heir, he is left wholly unprotected against State demands. I answer, he has the benefit of the general law of limitations, and of the act of 1789.

He for whose benefit an act of limitation is made, may or may not insist on it. If the executor or administrator does not plead the statute, and judgment is had against him, and he pays the debt out of assets, or if he pays just debts without suit, these shall be allowed * him in the settlement of his accounts, and his not taking advantage of the limitation shall not be deemed a devastavit; if he does not plead the statute of limitations, and the pica of fully administered be found for him, the legatees or distribu-tees may plead it to the soi. fa. brought against them on their bond for refunding, and the heir may also plead it to protect the real estate descended to him.

If the creditor commence his suit in due time, so that the personal representative could not avail himself of the statute of limitations, neither shall the legatee or him be permitted to avail themselves of it by plea to the sei. fa., unless, perhaps, in cases of unreasonable delay.

If an executor or administrator pay debts more than the amount of assets in his hands, he is placed on the same footing, and has a right to reimbursement on the same terms that the creditor would have to enforce his demand, and may in like manner be barred by the statute.

As to the continuance of 1715* ch. 48, § 9, after the act of 1789, or, if unrepealed by the latter act, the decisions in this State, and in North Carolina, and in the Circuit Court of the United States, and in the Supreme Court of the United States, are both ways ; we are, therefore, at liberty to pursue either. As to the applicability of the act of 1715 to the case of heirs, the decisions in North Carolina and in this State being in favor of the heir, we are bound to say that it does apply to him, and still exists. But then it may be construed so as not to hinder such benefit to the heirs under 1789 as results ■from the present construction. It may be subject without contradiction to such interpretation as is now put upon the word claim, not extending it to action. The heir may now say, You did not claim in seven years'. He may also say, You were barred as to the personal estate under 1789, and cannot thereby exonerate the personal estate and come upon me.

* The latter act will extend to both heirs and devisees; whereas the terms used in the former could not extend to devisees, they not being liable when the act of 1715 passed, unless it be first admitted that the statute of William and Mary against fraudulent devisees was in force here, which certainly was not until the 5 George II. The letter of 1715, ch. 48, will also extend to judgment against the ancestor in his lifetime, which in 1715 could not be pursued by action against the heir, but only by sci. fa. against him as terre-tenant, which was founded on the record of the judgment that executors and others are bound to take notice of, and probably the heir also, where notice is material. In the latter instance, the judgment could only affect one half of the lands, and the act of 1715 could only be a bar in this instance as to one half, whereas now the other half also will be protected against the executor by notice and action within the prescribed time.

It seems to me strange to suppose that the real estate can be reached otherwise than through the personal. It seems equally strange being that a creditor may be barred as against the executor, and at the same time not barred as against the heir. He ought not to be barred as to the one and not the other. Why exonerate the personal estate, and leave the real estate exposed till seven years have expired ? It is admitted on all hands that an advertisement pursuant to the act of 1789, ch. 23, § 5, will enable the executor to plead in bar in two years. Shall he really be still liable five years longer? I am of opinion the act of 1789, ch. 23, § 5, is not conditional, but directory, because of the disappointments which such construction would bring upon disabled creditors; for I cannot think the exceptions in 1789 are engrafted upon the act of 1715. If they were, then that act would become subject to equitable exceptions not stated in it, in like manner as is the common act of limitations. This is not consistent with the precedents which it is said we are bound to * follow. Conforming to them, we cannot make this addition, and, therefore, they must either be sacrificed at the pleasure of the executor, or be preserved by the unconditionality of the clause in question. If unconditional, all admit that 1715 is repealed as to executors. Shall the personal estate, by reason of these exceptions in favor of disabled persons, he suable twenty or more years hereafter, and the real be absolutely exempt in seven ?

Upon the whole, if no former decisions had ever been made upon the act of 1715, ch. 48, § 9, I should think it never was intended to embrace the case of heirs. But taking it as I think we ought, some of these decisions to be in force as to them, then, in my opinion, the word claim, means notice to the heir, not an action at law, which, if once given within the seven years, as the law stood under 1715, prevents the bar of the creditor. The distinction between claim and action is evident in the act of 1789, which excuses the bar if claim be made and suit brought within the limited time.

This argument, at the request of the bar, has been founded on the answer, as if the same matter were pleaded. The answer must stand, and the evidence need only be pointed to the part of the plea which denies that any claim was made in seven years.

Haywood, Judge.

If the ninth section of the act of 1715 applied to heirs as well as executors, it could only have contemplated the barring of such debts as might then be recovered against the heir, debts by specialty in which the heir was named. It was no bar in favor of devisees, for the statute making them liable had not at that time been enforced here. To be sure, the real estate has since been made liable to all just debts, but that circumstance cannot enlarge the operation of a precedent act of the Legislature. And there is the less reason for saying so, as the common act of limitations, made * at the same session of the Legislature, barred all simple contract debts at the end of three years, with an exception in favor of the creditor under disabilities until a time specified after the removal of such disabilities. 'Why say the heir may plead that he was not sued in seven years, and at the same time say he may plead that he was not sued in three years ? It might also be argued that the indefinite responsibility of an executor, though he had paid out the assets to legatees, which gave him no exemption from the action of a creditor, and left him exposed to answer de bonis pro- priis, though the securities of the legatee were all dead or insolvent, was the cause which induced the Legislature to limit such responsibility to seven years, and deliver him from a peril which did not affect the heir ; therefore, that the limitation did not extend to him, and that he ought in justice to remain liable to the debt as long as his ancestor would have been had he lived. His real estate,' being imperishable and immovable, could not be withdrawn from the heir as personalty in the hands of a legatee may from the executor, and therefore, that the same reason for protecting the heir did not exist in 1715 as did for protecting the executor. Without resorting, however, to all these considerations, and without deciding whether this' section did or did not apply to heirs, the question now before us may be settled.

The act of 5 George II. ch. 7, made lands liable to all debts. The act of 1777, ch. 2, § 29, recognized the same law. The act of 1794, ch. 1, § 28, did so likewise. The act of 17 84, ch. 10, provided the means of subjecting an heir in case of the death of an ancestor. The executor was to be first sued; and pleading no assets or fully administered, and having the same found for him, the creditor was then directed to pursue the heir by scire facias founded on that judgment; Thus the heir, with respect at least to all debts he was made liable to by the act of George II., could not be reached or * im-pleaded but through a judgment against the executor. When, therefore, a judgment cannot be'obtained by a creditor against the executor, the same debt also cannot be recovered against the heir; for, without a judgment against the executor, no scL fa. can issue against the heir. Then the question descends to this point: Will the act of 1789, ch. 23, § 4, bar the creditor within the State from recovering against the executor at the end.of two years after his qualification as executor ? All admit that it will so bar, if the operation of the act of 1789, ch. 23, § 4, does not depend upon a previous advertisement by the executor, as required in § 5 of the same act. Then we descend to another question : Is the said fifth clause a conditional or only a directory clause ? Consider for whose benefit is the limitation in § 4. The executor, whether he hath advertised or not, after the end of two years may pay over to the legatees, by §§ 2 and 3, all the assets remaining in his hands, taking bonds payable to the chairman, and afterwards may plead plene adminis-travit to the action of a creditor. He is safe without the limitation contained in this act. The limitation, then, is in favor of the personal estate in the hands of the legatee, giving also a time for disabled creditors which is not allowed them by the act of 1715. If this limitation is not to take effect unless the executor advertise, then one consequence is that the personal estate in the hands of the legatee will be exposed at least for seven years. The executor, without any risk to himself, may keep up the liability of the personal estate, by his neglect, five years longer than the Legislature intended. On the other hand, the exception in this act is from the bar of two years established by it. Now,- if the bar does not take place, there can be no exception from it of particular cases of disability ; and then the disabled persons intended to be provided for by the act of 1789 will be at the mercy of the executors. If he chooses not to do his duty, and not to * advertise, they are placed under the act of 1715, and are barred in seven years. If he chooses to do Ms duty, and do advertise, then the disabled creditor may sue after the seven years, whenever the disability shall be removed. A construction that places both the legatee and the disabled creditor in the power of the executor, doing mischief to them by his failure and misconduct, without any detriment to himself, cannot be correct. The true construction must be, that the fifth section of 1789, ch. 28, § 5, is not a condition precedent, but directory to the executor. Should a creditor suffer for want of advertisement, that will be a matter to be adjusted between the wrongdoer and the sufferer, but not a matter to prejudice the innocent legatee or disabled creditor. If directory, then the bar attaches, whether advertisement be made or not. If so, then one consequence is that a creditor, being barrable in two years by 1789, cannot, by the intention of this act, be left under the act of 1715, that only bars in seven. For why bar in seven, if barred in two ? Why bar a feme covert, or the like, in seven, when not barred by 1789 till discoverture, though 20 years after the seven ? Both are provisions upon the same subject, within the purview or body of 1789, and therefore the former or act of 1715 seems to be repealed by the express of words of 1789, ch. 28, § 6. We then come to another reflection. If the creditor be barred as against the executor in two years, and cannot after being barred pursue the heir, shall he, thus bai’red as against the personal estate, proceed against the heir by action, laying aside the sci. fa. ? Can he recover against the real estate, after exempting the personal forever by his delay, although the law directs, as a fundamental provision, that the personal shall be the primary fund ? Shall he thus be allowed to overturn the established rules of law to suit his own purposes or caprices ? If the creditor cannot subject the * personal estate because of this limitation, shall he be allowed by circuity to turn the heir upon the personalty ? Ch. 10. The bar is of no effect as to the personalty, for it may thus ultimately be subjected.

If this reasoning be correct, then can Pea recover against the heir ? He may, notwithstanding this plea of the seven years act; for if it ever could have been pleaded by the heir it is perhaps not pleadable since the act of 1789, and from the consideration of precedent. If bound by the common act of limitations so far as concerns the personal assets, the executor is not bound to plead it. But if he pay debts beyond his assets to which he might have pleaded “ fully administered,” he is a volunteer, and stands in the place of the creditor against the heir, who can avoid the judgment by pleading a matter which shows that such judgment is unjust, or was barrable by plea when recovered against the executor. If the creditor could have been barred by the executor by the plea of this limitation, then he shall be barred now by the heir. If the creditor could not have been barred by such plea of the executor, neither shall he be barred now; for then the creditor might have obtained judgment and have proceeded against him. The executor, by payment, has precluded a judgment against himself by the creditor, and has extinguished the demand of the creditor; but thereby has not substantially placed the heir in a worse situation than he would have stood in had the judgment been obtained. It would therefore be unconscionable in the heir to withhold payment upon the ground of this informality, provided no substantial defense which he had before is taken from him. They ought both to stand in equity unembarrassed by the mistake ; and upon the same footing as if judgment had been actually entered against the executor. In that case the heir who sued by sci. fa. could only show that the executor had assets, or could have barred the executor by the act of limitations ; * which, if he could have done then, he may do now. And by this means may they both be discharged, the executor in common cases by plene administravit, and the heir by the act of limitations, which the executor might, have pleaded. Each will enjoy the advantages which the law gives him. After payment by the executor of any sum above his assets, he as creditor of the heir ought to bring his bill within the same time that the creditor was bound to bring his sci. fa. And as the sci. fa. is not limited by law, so neither is the bill, until time enough be lapsed to form a presumption of dereliction.

But combine this reasoning with former decisions, and how stands the law ? The result is that neither of these defenses is wholly good; one being founded in part upon not suing within seven years after the death of the intestate. So far is it incorrect; for suit is not required by the words of the seven years act, though claim is, and so far the defense may upon precedent be valid. The other plea is that the intestate did not assume within three years; the meaning must be, next before filing the bill. It ought to have been next before the payment by the administrator of the debt now demanded.

If the act of 1715 so far as concerns executors be repealed by that of 1789, then the existence of the clause in 1715 in favor of heirs would be injurious to them; for after the creditor was barred as to the executor in three years or two years, as the case might be, still he might sue the heir and subject the realty. I mean, supposing the fifth section credited, and an advertisement to have been made. If not repealed by 1789, then the creditor may be barred before the debt become due after seven years, or if it become due so late within the seven years that he has not time to recover, first, against the executor, and then against the heir.

If the opposite construction be correct, then the * disabled creditor will be barred as to the heir in seven years, though at liberty to sue the executor after- the lapse of 20 or 30 years ; and being then repelled by the plea of administravit, cannot resort to the heir. And thus the realty will be exonerated; at the same time that the personalty is, so long as there is any, will continue liable; a difference certainly never intended.

The creditor, under the opposite construction, may sue the executor if he qualify after the end of seven years, though the realty at the end of seven years be wholly discharged; the executor being liable to a debt becoming due after seven years, because of the equitable construction which may be given to a statute with exceptions, as the act of 1789 is. At the same time that the heir is completely discharged, because the act of 1715 is not capable of such equitable construction.

Why is the advertisement of such consequence ? Those within •the district or county will hear of the death as soon as of the advertisement ; and those beyond the county or district will often hear of the death much sooner than of the advertisement. It is hardly supposable that any one will get notice by the advertisement who would not get without; and yet, immaterial as it is, the act by .the opposite construction is made to be of no effect without it.

But, indeed, if the section in question must nqw be taken as applicable to heirs, then what are its words ? .The act of 1715, ch. 48, § 9, is in these words: “ Creditors of any person deceased, shall make their claim within seven years next after the death of such debtor, otherwise such creditor shall be forever barred.” Now what is meant by the word claim both at the common law and under our acts of Assembly, 1715, ch. 27, § 8; 1797, ch. 43, § 4; 1789, ch. 23, § 4 ? It is a demand, or making known of the demand, to the person who is subject to it, within seven * years; to the end that, being apprised of the debt, he may provide for its payment. An action is not requisite. Verbally preferring the demand is enough. Suing the executor is notice enough to' the heir. Ids pendens in a Superior Court is notice to a purchaser, because of its notoriety. A judgment against the testator is notice to the executor. Why not suit against the executor notice to the heir ? It is' the pendency of the suit in the case of the purchaser that creates the notice. 2 C. D. “ Chancery” verbo “ Notice.” We are not bound to go beyond former decisions and to say that claim means action. If stated in a plea which is set down to be argued, the statement must be taken as true. If in an answer, then by a replication the plaintiff should be at liberty to prove the claim or notice. What we have now before us is to say, whether, if such claim or notice be proved, the bar will thereby be prevented.

I cannot believe it proper to introduce an act of limitations for an heir not named in any part of it, and then to bar the demands against him by stretching words beyond their usual signification. The act of 1789 required the creditor not only to demand, but also to bring suit; so did the act of 1797. The expression there is legal claim, by suit in law. The act of the 4th of Anne, ch. 16,. § 16, declares that no claim shall be sufficient within the act of limitations of 21 James I ch. 16, unless an action shall be commenced within one year after the making of such claim. A broad road of distinction is made between claim and action at the common law, as well as by the British statutes and our own. Let it remain. Let us not break it down, for by so doing we shall bring confusion and error into the interpretation of such of the acts as have used the term in its legal and established sense.

The conclusion is, that if there was no claim in seven years, this suit is barred ; but if there was a claim within seven years, then it is not barred. Claim, * in the act of 1715, ch. 48, § 9, means a verbal, written, or other intimation of the demand, either express, or by some distinct communication that the debt exists.

Let this part of the answer, therefore, stand for proof of the claim, if it can be made.

Whyte, Judge.

The question is, whether the act of 1715, ch. 48, § 9, is in force, and can be pleaded by heirs to a demand against them for a debt by their ancestor. It was argued that the act of 1715, ch. 48, § 9, never was intended to embrace heirs or real estate; that its objects are manifest in its provision by executors and administrators and the personal estate; and that this is the case is apparent from the caption of the act, which is entitled “ An act concerning proving wills, and granting letters of administration, and to prevent frauds in the management of intestate estates.” It is to be observed that the title of a statute is not to be regarded in construing it, because it is no part of the statute (4 Bac. 380), and it cannot have escaped the notice of those who are conversant with the frame of our acts of Assembly, how often a clause of a certain import is ingrafted upon an act respecting a different subject, the clause being sui generis totally distinct from and unconnected with the general purview of the act: the clause on that account cannot be considered as less valid, and it must be interpreted according to the import of the words used, and so is Bac. Abr. ubi supra, which says, “ If a section be introduced which is a stranger to and unconnected with the purview of the act, it must nevertheless take effect according to its obvious meaning, independent of all influence from other parts of the law.” The ninth section is in these words, “ That creditors of any person deceased, shall make their claim within seven years after the death of such debtor, otherwise such creditor shall be forever barred.” This is a general act of limitation, it contains no exceptions; * and it is believed in such a case, where no exception is 'made in express terms, none can be raised by construction. Creditors shall make their claim ; here is no designation as to kind, nothing that points to a division; the expression is general. All creditors must therefore be comprehended, and the bond creditor of course as well as any other; for why should he be excepted ? Does not his come equally within the spirit and policy of the act, which were the settlement of the estates of deceased persons, the adjustment of the different interests that necessarily arise upon such a change and accompanying a transfer of rights, with the expediency of terminating all questions respecting them as soon as possible, and the public convenience resulting therefrom in the quiet and repose of society ? In reference to these matters, no distinguishing difference can exist between him and any other creditor. An argument is drawn from ch. 27, § 5, of this same year, and it is said the Legislature, having the subject of -limitation before them, made a general law and excepted his case out of it, thereby inferring that it was their intention to except his case out of this act also; but the inference does not hold; the two limitations have different purposes in view; the one turns upon the evidence that establishes the claim, its facility, and its certainty; the other regards the repose of society in the preservation of the existing state of things which a lapse of time has produced. It is admitted on both sides, that under this section the personal estate is protected, and that the executor may plead the seven years’ limitation in bar of the bond creditor; then, why should not the real estate be also protected, and the heir be admitted to the same defense ? By the common law, the personal estate, or the goods and chattels of the debtor, and the profits of the land as they arose, which might be considered as personalty, were only liable to the satisfaction of his debts; the land was * not liable: upon feudal principles it was preserved to the tenant, to enable him at all times to perform the duties for which he was answerable to his lord. The creditor, in making the engagement, only looked to the personal estate as his security for the fulfillment of it, and upon the death of the debtor the onus of payment devolved upon the executor by virtue of the fund of which he was possessed. But if the contract of the debtor had been reduced to a judgment in his lifetime, then by the statute 12 Edward I. the lands descended to the heir were bound in his hands for satisfaction, and the half of them in value were by the elegit to be delivered to the creditor, to be by-him held until the yearly value .found by the inquisition taken by the sheriff upon the oath of good and lawful men, discharged the debt and damages recovered. If, .however, the heir was bound in a bond given by the ancestor, and a recovery was had thereon against the heir, the judgment rendered .was to- be levied off all- the land descended to him from his ancestor; and by the common law execution which issued in pursuance thereof, the whole of the lands descended to the-heir, and in his hands on the day of obtaining the- original writ, were delivered to the creditor, to be by him held pursuant to the valuation upon inquisition until the judgment was satisfied. 2 Plowd. 438-441, 360, 12. Thus stood the law at the time of the passing- the act of 1715. The personal estate was liable in the hands of the executor or administrator .of the debtor to the satisfaction of all his contracts,- the half of the .real estate descended in the hands of the heir was liable to the satisfaction of judgment obtained against the ancestor himself, and the whole of the real was liable in the hands .of the heir upon a judgment obtained against the heir himself, in debt in the detect and derinct upon the bond of his ancestor. Upon this state of things I ask again, why should not the ninth of ch. 48,1715, extend to .heirs- as well as excutors and administrators, * and its protection embrace the one case as well as the other •? Both the personal and real representative were liable by virtue of the fund they possessed and not otherwise, unless by their own default they made themselves so, as by mispleading. Rather,-if this argument had any bearing at all, it would operate the other way, and press against the point it was' intended to support; for at that time, to wit, in 1715, the personal estate was the general fund -for the payment of all debts; the real estate a partial fund for the payment of particular debts only, which were peculiarly circumstanced. If this general, fund, then, to which all creditors looked, was shut up by the Legislature, .may it not be reasonably inferred that those less so were equally within their intention as they are within their words ? But it is believed the great principle upon which this limitation turns, .and which governed the Legislature of 1715 in enacting it, is that laid down by Judge Ovektok, in the case of Smith against Hickman’s-Heirs, Cooke’s Reports, 335, to wit, the peace of society and its preservation. After speaking of the limitation as to the personal estate, he says: “ As it respects the situation of heirs after the death of their ancestors, reasons for limitation also existed. If no lapse of time can secure the estate thus descended, the peace of society would be much disturbed. Recoveries might be made of one of many heirs, and suits for contribution must take place. If the Legislature deemed it of importance to the peace of society that the time for bringing suits should be limited in the case of proper debts of individuals, surely there is as great reason that heirs should be exempted on that ground from litigation after a certain lapse of time. Otherwise they could not know the situation of their affairs; common prudence would suggest that for some time they would keep their concerns in a compact situation so as to be able to meet any demand, though unknown'at the time of * coming to their patrimonial estate. There surely ought to be some time when this obligation should cease.”

To this reasoning of Judge OvertoN I subscribe. It may be further observed that the 27th 'chapter of this same session', enacted by the same Legislature, is strongly illustrative of the policy which prevailed at that time, and governed them; it breathes the same spirit as the ninth section of chapter 48, and its enactments tend to the same result, to wit, the peace of society. The 27th- chapter of 1715 is a reduction of the statute 21 James I. ch. 16. The statute of James limits the right of entry and into lands to 20 years ; this act limits the same to seven years. The statute of James limits trespass, detinue, trover, debt, case, &c., to six years ; this act limits the same to three years. The statute of James limits assault and battery, &c., to four years, and actions of slander to two years; this acts limits the same, the former to one year, and the latter to six months. At and before the passing of this act, the statute of James must have . been in force here ; the colonists must have brought it with them, adopted it and acted under it, until it was repealed or its provisions altered by them. The act of 1715, ch. 27, is the alteration they made compared with the statute of James; its policy is manifest, it speaks for itself '; while it protects the rights of individuals, it regards the interests of the community, and while it permits redress for the violation of these rights, it consults the public repose and the peace of society in the exertion of it. Upon the whole, therefore, it is my opinion that the ninth section of the 48th chapter of 1715, includes heirs as well as executors and administrators in its words, in its spirit, and in its policy.

The next question is, does the act of 1789, ch. 23, repeal the act of 1715, ch. 48, § 9, as it regards either heirs or executors and administrators ? And first, as it regards heirs. The act of 1789, ch. 23, is not an * express repeal; it does not say that this ninth section is repealed in terms; much less does it say the whole act is repealed. The repeal, then, of 1715, ch. 48, is only express so far as the provisions of 1789, ch. 23, are inconsistent with it, and this leads us to a notice of these provisions. It may, however, previously be observed that Judge Oksdell, who was employed by the State of North Carolina to revise and publish all such acts as were in force and use, and to leave out all laws repealed and .obsolete, as well under the Colonial as the State government, hath retained this ninth section of 1715, ch. 48, in his compilation; this evidences his opinion on this point. Other judges of North Carolina have expressed the same opinion, and such authorities seem to me to be entitled to great weight upon this question. Are there any provisions, then, in the act of 1789, ch. 23, inconsistent with this ninth section of 1715, ch. 48, as it regards heirs ? None ; the word heir is not once mentioned in the act; and all the reasons that concurred in the enacting the act of .1715, ch. 48, § 9, existed in the year 1789, and its policy was rendered more cogent by the intervening acts of 5 George II., and of October, 1784, ch. 11, which subjected the real estate to the payment of all the debts of the indebted ancestor indiscriminately, that could not be satisfied out of the personal estate. Every reason for the limitation applicable to executors and administrators now, since these acts, more strongly applies to heirs. If, after a certain lapse of time, it was thought difficult for the executor and administrator to protect the personal estate, who had the proper vouchers and other documents, enabling him to resist the unfounded or the overrated claim which might be exhibited against him, how much more difficult for the heir to resist such claims without these aids; and add to all these the possibility of collusion between a pretended creditor and the executor or administrator, in such a case how is the heir to protect himself after * a great lapse of time ? He cannot do it. He therefore stands more in need of the protection of 1715 now, than he did at the passing of that act, and the public peace would be more disturbed, inasmuch as the devices of doing so have been multiplied by the acts of 5 Q-eorge II. and 1784. My Lord Coke, in Doctor Foster’s case, says that leges posteriores, priores contrarias abrogant, but that this contrariety must be in matter; and he adds that it must be known, inasmuch as acts of Parliament are established by universal consent for the advancement of the commonwealth, they ought not by any constrained construction out of the general and ambiguous words of a subsequent statute to be abrogated, but ought to be maintained and supported with a benign, liberal construction. From this doctrine, evidence of a repeal is not to be courted, and the intention to do so is to be repelled, unless it necessarily results from the contrariety of matter, and produces this consequence, that both cannot well stand together. My opinion is, they both can well stand together as it respects the heir.

The next question is, as it respects the executor or administrator, is 1789 a repeal as to him of the seven years’ limitation, of 1715? All laws and parts of laws that come within the púrview of 1789, are expressly repealed by the sixth section. Now to ascertain what comes within the purview of 1789, we must notice the law as it stood befoi’e the passing of that act, and the alteration produced by it, so that we may perceive what it was the Legislature had in view by the act of 1789 ; what mischiefs or inconveniences they intended to remedy and provide against. Some of the provisions of 1715 had from time and circumstances become unsuitable to the state of society in 1789. The mode of proving wills and granting letters testamentary, and letters of administration, from the increase of population and the extent of territory over which it was spread in 1789, rendered it extremely inconvenient *to have all this business transacted in the secretary’s office and general court. The first section of 1789 remedied this, by transferring the business from the Governor and general or precinct court to the County Court, where the testator or intestate usually had his residence ; a tribunal better adapted to the ease and convenience of the citizens, and better fitted for the correct discharge of those duties, from their knowledge of the parties and other circumstances necessary to be taken into consideration, especially in granting letters of administration.

Another mischief in the act of 1715 was the shortness of the time allowed the executor or administrator to pay the debts of the deceased, before he was compelled to deliver over the estate that was unadministered by him to the legatees and distributees. This, by act .of 1715, was one year; it was remedied by act of 1789, § 2, by extending the term to two years.

Another mischief, and one which operated severely upon the executor and administrator, was the continuing his liability to make satisfaction to the creditor, and payment of his demand after distribution legally made, and delivering over of the property to the legatee and distributee. It is true he had the power of having bond and security given him to compel the assets to be refunded, if necessary, before he parted with them,'but the law continued him the instrument of affecting this; he w'as the medium through which- the recovery by the creditor was to be had on the one hand, and on the other, retribution from the legatee and distributee, to satisfy this recovery. This subjected him to much trouble and inconvenience. The act ot 1789, §§ 2, 3, remedied this by removing from him the latter duties, and imposing them upon the creditor himself. This was affected by taking the bond to refund, payable to the chairman of the court and his successors, instead of the executor and administrator, and giving the process of scire facias thereon to the judgment creditor.

* Another object the Legislature had in view by the act of 1789 is introduced by the fourth and fifth sections. By the fourth section they say, all creditors, if resident within the State, shall in two years, and if out of the State, within three years from the qualification of the executor or administrator, exhibit and make demand of their claims of every kind ; and on failure to make demand and bring suit as above, shall be forever debarred of recovery both in law and equity. By the fifth section they say, “ In order that all creditors may be duly apprised of the death of the persons indebted to them,” executors and administrators shall, within two months after qualification, advertise at the court-house of the county and other places therein, at the district court-house of the next district Superior Court of law and equity there, for all persons to bring their demands of every kind to the executor or administrator, agreeably to the directions of this act. Now what is the object the Legislature had in view in those two sections? It is the settlement and adjustment of the estates of deceased persons as quickly as possible. To promote this object they address themselves to the parties who will be principally instrumental in accomplishing it. Who, in the order of time and the nature of the business, is to do the first act? The executor or administrator. To him they say, within two months after your qualification you shall advertise, &c. For what purpose do they say this shall be done ? In order that all creditors may be duly apprised of the death of their debtor, that there is an executor or administrator to whom their accounts and demands of every kind and denomination are to be brought. Who, in the like order of time and nature of business, is to do the next act? The creditor, of course. To him they say, within two years if your residence is within the State, and if not, within three years from the qualification of the executor or administrator, you shall exhibit and make demand of your debts and claims of * every kind; and if you fail to demand and bring suit you shall be forever barred. From these sections taken together, it seems to me that the Legislature could not intend the bar to operate unless advertisement was made. If advertisement is not made, the creditor pursues his remedy as before these sections was made ; that is, he may bring his suit at any time within seven years after the death of the debtor, pursuant to the third section of ch. 48 of 1715. If the creditor brings suit after the two years in section second of 1789, the executor or administrator may plead fully administered, and if found for him, the creditor is turned over upon the legatees and distributees, or both, as the case may be, by virtue of the same second section and third section, and has his recovery satisfied by them upon process of scire facias. But it was argued at the bar that this fourth section was intended for the benefit of legatees and distributees ; that the limitation of two years and three years is for the benefit of some one; that the executor or administrator needs it not, for he is protected by the bond and the plea of fully administered; it must, therefore, be for the benefit of the legatee and distributee to quiet them upon their bond, and discharge them from liability to creditors, if their claims were not brought within the two or three years. As was noticed before, the situation of the executor and administrator is much meliorated ; by the provisions of the second section, he is discharged from much trouble by the bond being payable to the chairman, and then sci. facias. thereon, but he had no risk to run before this; the bond was taken personally to himself, and he had the power of good security ; if he did not take it, it was his own fault; his protection is not increased, hut his convenience is consulted. It is true a benefit is given by this fourth section to legatees and distributees, but it is incidental only, and consequential upon a bar being effected. Neither the bar nor the consequent benefit to legatees and distributees * is the primary object of the Legislature ; but the speedy settlement of deceased persons’ estates is, and these occasionally result as accidents in accomplishing the main object. It results to them as a penalty or a forfeiture of the creditor for his misconduct in not obeying the requisitions of the law, and in proportion as he loses they gain. But this benefit they have upon terms, and it does not follow that they are to have it at all events, whether these terms are complied with or not. By no means; this would be extending a benefit to legatees and distributees beyond the law and the reason of it, to the manifest injury of the creditor. The fifth section says, in order that all creditors may be duly apprised, &c., advertisments shall be made, &c. Does not this evince it to be the clear intention of the Legislature, that these are the terms upon which the strong measure of the fourth section should be enforced upon creditors ? Advertisement is to be made; for what ? That all creditors may be duly apprised of the death of the debtor, and so be enabled to bring suit and avoid the bar; ergo it follows, as a consequence, no notice, no bar. To construe the fifth section as merely directory ■would render it nugatory to the creditor ; it might as well not have been enacted at all as to him, to say it shall be observed, and not make its observance operate as a condition precedent. It is said this construction is placing the legatee and distributee in the power of the executor and administrator. To this it is answered, the other construction has worse effects ; it is placing the creditor in the power of the executor and legatee, of the administrator and dis-tributee, and by their collusion operates in transferring the debt of the creditor to the legatee, by so much augmenting the fund that ultimately goes to the latter. Now which ought to be thus placed, the legatee and distributee, or the creditor ? The executor and legatee, the administrator and distributee, are the representatives of the same person * with regard to the same fund; the creditor is a stranger; his claim is adverse, and in the eye of the law more favored ; but to put such a construction upon this act as would place the claim of a legatee or a distributee in a more favored point of view than the claim of a creditor, would be a violence upon every legal principle, which always prefers the latter claim to that of the former, and directs its first and prior satisfaction; and then, and not before this satisfaction is made, is the right or claim of the legatee or distributee at all acknowledged.

But again it is argued, that this act is inconsistent with the act of 1715, inasmuch as by this act a bar of two years and of three years is given by the fourth section, then the bar of seven is not necessary to effect what is already effected. This would be the case were the bar of 1789 not conditional and dependent on the advertisement; but I think the plain object and fair meaning of the fourth and fifth sections of the act of 1789, taken together, is the introduction of a new limitation upon terms. If these terms are complied with, the fund is protected by the second and third years’ limitation from the creditor; if not complied with, then only protected by the old limi-itation of seven years. These two limitations are not inconsistent; they may well stand together within the reason of the act. If the party has given publicity to the death of the debtor and of his own situation of being answerable to the creditor, and brings this knowledge home to the creditor, by showing a legal and effectual advertisement as prescribed by the fifth section, he shall be barred. But is it reasonable that the want of this knowledge, which depends upon the act of the party opposed to the claim of the creditor, shall oust the creditor of his former remedy and of rights not given by this act, and not dependent upon its provisions ? Such consequences cannot be either within the act or within the reason of it.

* But an argument has been drawn from the exception in the act of 1789 in favor of infancy, coverture, &c., to show that the act of 1715 is not in force, for it is said that if the disability is not removed until after seven years from the death of the testator or intestate, and the act of 1715 is to prevail and be a bar, then the act of 1789 is rendered inoperative, and the exception nugatory. If the exception is to prevail, then the act of 1715 is no bar. This is an extreme case, and by possibility may exist; but every case cannot be embraced and provided for, although coming within the same apparent mischief. It has been universally admitted that a positive bar is enacted by 1715, ch. 48, § 9, without any exceptions whatever. This is by a period of seven years; this period the Legislature fixed upon as the most suitable to answer the purpose intended by them to rest the repose of the country ; beyond this period, public convenience says claims by suit shall not be entertained by the tribunals of the country ; if earlier application is not made, public policy says they shall not after that be sustained ; that after this period, it is better for particular situations, as infancy, coverture, &c., to suffer, than the general repose of the whole country. But because the general policy of the country must prevail, it does not follow that this is oppugned by the act of 1789. These exceptions may be still operative to a certain extent, and when not set in opposition to this policy ; neither do I think the Legislature of North Carolina ever intended such ail opposition. When may they operate ? Whenever the limitations of 1789 have attached and that of 1715 has not; that is, during four or five years, according to the case. Suppose the disability is removed one day after the limitation of the two or three years of 1789, and the requisites of advertisements have been complied with by the executor or administrator, a bar .is then affected, but the exception * sustains the action against the enactment of the fourth section of 1789, of two and three years ; and this it will do to any suit brought thereafter for the space of one year. So, if the disability is removed at some after period, as in five or six years after the qualification, and within seven years from the death, the exception is sustained by the proviso against the enactment of the fourth section.

Thus, in all these cases, there is an operation for the exceptions of 1789 without interfering with the public policy of .the country declared in 1715, and both laws can well stand together and be consistent with each other; and this is giving a privilege to infants, feme coverts, &c., not given to the mass of the citizens, and extending to them a relief in consequence of their disability as far as is consistent with public policy, and no further. This furthest limit is prescribed by 1715, ch. 48, § 9. In support of this construction, I will here quote the reasoning of the judges upon the statute of fines, in the case of Stowel v. Zanch. They say, where an act of Parliament limits a time for the public repose of the realm, in order to avoid universal trouble to the subjects of the realm, such time ought to be peremptory, and ought not either by exposition or equity to be favored and enlarged for an infant, or any other, beyond the strict extent of the words, for the public repose is more to be regarded than the private convenience of any particular person, whether he he an infant, or of unsound mind, or any other degree. Plowd. 372.

See, as to substitution, Lyon v. Vick, 6 Yer. 42. As to claim, Johnston v. Dew, 5 Hay. 224. As to limitation, Batson v. Murrell, 10 Hum. 301; Wharton v. Mayberry, 3 Sneed, 603; Bym v. Fleming, 3 Head, 658; Hamner v. Hamner, 3 Head, 398. See King’s Digest, 445, 2788, 2958, 2972, 6639-47.  