
    John Johnston, Executor of Alexander Johnston, deceased, v. Arthur Dew, Administrator of Tyree Harris, deceased, in Right of his Wife, Susanna Dew.
    
      [.Administration. — Limitation. — Amendment. — “ Claim.” — Certiorari — When granted. — Dismission. — Departure in Pleading.~\
    
   Haywood, Judge.

The writ in this cause issued the 7th of March, 1809, for Alexander Johnston, as plaintiff, against these defendants, which was executed and returned to April term, 1809, of the County Court of Davidson. The declaration was founded upon a bond dated the 14th of January, 1800, for conveying a certain tract of land to the plaintiff by the intestate, Tyree Harris, with warranty, which the declaration states he did not convey, nor his administrator, although specially required at Nashville, 28th February, 1809. At April sessions, 1810, the defendant pleaded covenants performed, plene administravit, and no assets, upon which issues * were joined. A verdict was rendered on the same term, upon all these issues, for the plaintiff, damages assessed, and judgment given, to be levied of the goods of the intestate, &c. This cause was then removed by certiorari into the Circuit Court, which certiorari was dated the 14th of March, 1811. In September, 1811, the plaintiff having died, his executor, the present plaintiff, was made a party in his place; and the cause was continued from time to time until November term, 1814, when the court gave leave to file additional pleas. One of these pleas states the death of Harris, and administration granted to Susanna Dew, in April term of the Court of Pleas and Quarter Sessions for the county of Davidson, in the year of our Lord 1802, who advertised within two months, &c. The defendant, Dew, stated on an affidavit that he never knew till then (November, 1814) of the materiality of the plea. The replication to the plea says she did not so advertise, and issue was thereupon joined. The defendant’s other plea stated that the plaintiff is executor or his testator did.not make claim of said demand nor sue within seven years next after the death of Tyree Harris; upon this plea there is a demurrer and joinder, which, however, was withdrawn, and a replication filed, stating a demand b_y Alexander Johnston, 28th February, 1809, within seven years next after the death of Harris, and that the defendants promised to pay, &c. The rejoinder says he did not demand by bringing suit within seven years ; the plaintiff demurred, and the defendant joined in demurrer. In November term, 1814, a bill of exceptions was signed. It excepted to the opinion of the judge of the Circuit Court, for admitting these pleas at that late period. In May, 1815, there was a verdict for the plaintiff upon the issues of fact, and the cause, by consent, was removed into this court as to this exception. It is to be remarked that the action was commenced on the 7th of March, 1809 ; the pleas were offered and received * November term, 1814. The trial in the County Court was in April, 1810. On the 14th of March, 1811, the certiorari issued, returnable to September term, 1811, which commenced on the second Monday of that month. The record shows that the session of the County Court commenced on the third Monday of April, 1809, and also on the third Monday of January, 1809. September term, 1810, of the Circuit Court intervened between the trial in April, 1810, and the date of the certio-rari. The application for the certiorari was made, as is supposed, some time during the March term of the Circuit Court in the year 1811. For what cause it issued does not appear. The application, after such a lapse of time, ought to have shown the strongest possible reasons for not applying at the first term after judgment. Judgments ought not to be exposed to avoidance indefinitely, when the evidence to support them is extinct. Such a practice would render nugatory all the judgments which the courts could give, and make plaintiffs liable to refund, by writs of restitution or actions upon the case at any distance of time, and whenever it is discovered that the original evidence used at the trial could no longer be produced. With such properties, the certiorari would become the most mischievous engine of injustice that ever was employed in forensic proceedings; whereas, like other useful things, when kept within the bounds of moderation, it is productive of much good, as it must be admitted to be when employed to obviate the tricks which aim at the prevention of remedies and of trials allowed by law to the plaintiff in the certiorari, who otherwise would be defeated of them. No objection, however, being made on the return of the certiorari, but, on the contrary, the plaintiff having applied for a new party to be substituted in place of the original plaintiff, who had died in the mean time, it must now be understood that the cause was removed into the Circuit Court by consent, * and thus a difficulty is surmounted which otherwise would have been very formidable.

As to the lateness of the time of receiving the additional pleas : if they are so material as to be decisive of the controversy, and if also the court can be satisfied of the trfith of them, when at any time before verdict, they ought to be received, otherwise irreparable injustice might be done to the defendant through his own ignorance or the mistake or unskillfulness of covenant; for it is doubtful whether he could be relieved in equity. And if he could, courts of law, when they have it in their power, ought rather to afford to the parties before them the necessary relief, than send them to other courts, thereby protracting litigation, and accumulating expense and vexation. In this spirit is conceived the act of 1809, ch. 49, § 21, “ No proceeding shall be quashed or abated for any omission, defect, or imperfection, but the said courts, namely, the Circuit Courts and Courts of Pleas and Quarter Sessions, shall and may from time to time, permit either of the parties to amend, &c., upon such terms as they respectively in their discretion, and by their rules shall prescribe. The same spirit is manifested in 1809, ch. 126, § 10, “ No judgment, decision, or decree of the Circuit Courts shall be reversed in the Supreme Court unless for errors which affect the merits of the judgment, decision, or decree complained of. To be sure heavier terms ought to be imposed on a stale than on a recent application to amend the pleadings, such terms as will preclude a suspicion of meditated delay, and as are adequate to the purpose of deterring suitors from the practice of delay. In the instance before us, the court was not applied to for such terms, which is another proof that the parties came into this court by consent. The pleas received have the sanction of former decisions for their materiality, and that is ground enough for the Circuit Court to conceive them to be material and decisive, until a contrary * decision shall take place. The affidavit offers a tolerable excuse for not pleading the same matters before. This record at that time showed the death of the obligor, and the time of commencing the action against his executors, which prima facie prove the lapse of seven years between his death and the commencement of the action. Therefore both the materiality and truth of the plea did prima facie appear, and the application was before the verdict or trial. It cannot be said then, correctly, that the Circuit Court erred in receiving the additional pleas.

As to the pleas themselves and the pleadings upon them, one question for discussion is, whether the rejoinder be a departure from the plea, and if a departure, what is the effect thereof by the law of this State ? A departure is where the defendant sets up one matter of defense in his plea, and afterwards another in the rejoinder. If this were allowable, he might set up another in the rebutter, and when it came to his turn in the course of pleading to speak again, he might resort to new matter still, and so never come to an issue at all, either of law or fact, and might never have judgment against him. 2 Wells, 98, ch. 304 a. According to the law as it stood till our acts of 1809, a departure was matter of substance for which on a general demurrer the court would give judgment against him who was guilty of it, and was not such matter which by the 4 and 6 Anne, ch. 16, § 1, the court, upon demurrer, was to overlook in giving judgment according to the right of the case, so as sufficient matter appear on the pleadings. That is, matter of substance, by the law as it stood till 1809, is proved by Saund. 34, noted Willis, 25, 27, 638; 1 Wils. 122; 2 Wilson, 96; 4 T. 504. And were it not for these acts of our own Legislature, the court would now be bound to give judgment upon the demurrer for the plaintiff; for certainly to say he did not demand, and then to say he did not demand by bringing suit, are two distinct matters * and legal phraseology a departure. If we give judgment upon that alone, it may not be a judgment upon the merits as contemplated by the act of 1809. The real foundation may be mistake or want of skill in setting forth or selecting as a. defense the matter which is most proper to be relied on, and therefore judgment ought not to be rendered upon the departure alone; but rather a repleader should be directed to put in issue the matters that are material, and go to the merits, and so decide the cause. If we go back to the replication, that decidedly contradicts the plea; the defendant should have taken issue upon it. The matter of the replication is unanswered ; the plea is relinquished by the departure, and then upon what is the court to give' judgment ? It must be given against him who has made the first default in pleading, by neglecting to give a sufficient answer to sufficient matter alleged against him. The defendant has not given any sufficient answer to the plaintiff’s replication; and that being sufficient, we must leave the rejoinder and go to that, and so on to the plea; and if that be insufficient or abandoned, then to the declaration, and give judgment upon that; if that be insufficient, we must then give judgment for the defendant. We must disjoin all the unsound parts of the pleadings, and found our judgment upon the sound parts of them. In the case before us, if the matter of the plea be a good legal defense, it is denied by the replication ; and that being not controverted, judgment ought to be for the plaintiff. If the matter of the plea be not good, then of course judgment ought to be for'the plaintiff, unless it can be maintained that the pleadings ought to be amended.

This is an adjourned cause pursuant, as was supposed, to the act of 1809, ch. 26, § 9, “ Cases agreed may, by the consent of the parties, be adjourned to the Supreme Court.” And what is this court to do upon an adjourned cause ? It must act upon it in the same * way as the Circuit Court ought to have acted upon it had it not been adjourned. In cases of removal by writs of error “ the court upon reversal is to give such judgment as the Circuit'Court should have given, except where damages are to be assessed, &c., and in such case to remand the cause.” 1809, ch. 49, § 27. The same rule is to be observed in appeals in the nature of writs of error, which appeals are introduced by 1811, ch. 72, § 1, and the Circuit Court, after ascertaining the insufficiency of the rejoinder and the abandonment of the plea, ought to have heard an application for leave to join issue on the replication ; and if that court could have been satisfied by affidavit that there had not been a demand as stated in the replication within seven years, should have granted leave to join such issue; or if not thus satisfied by affidavit, should have given judgment for the plaintiff.

That would lead us to consider whether the plea, supposing it to be true, would bar the plaintiff; for if it would not be a bar, after issue joined and found for the defendant, it could be of no use in deciding the cause, and the court ought not to inquire into it, because of its immateriality, but should give judgment for the plaintiff.

If the plea be immaterial, and that be decided by this court, then the defendant will not be at the expense of establishing its verity. If decided to be material, the only time which can be consumed will be that employed in ascertaining the truth of the plea. It is therefore proper now to determine, as it was expected we should do on demurrer, whether the plea, if true, be a good one or not in law to bar the plaintiff’s demand. It is founded upon the act of 1715, ch. 48, § 9, “ Creditors of any person deceased shall make their claims in seven years after the death of such debtor, otherwise such creditor shall be forever barred. And if it shall happen that any sum or sums of money shall hereafter remain in the * hands of any administrator after the term of seven years shall be expired, and not received by any of kin to the deceased, or by any creditor in that time, the same shall be paid to the church wardens and vestry to and for the use of the parish where the said money shall remain.” By the act of 1784, ch. 23, § 2, “ As soon as the administration is finished and no creditor shall make any further demand, it is to be deposited in the treasury, subject to the claim of creditors and distributees, without limitation of time.”

In order to understand the ninth section of the act of 1715, ch. 48, we must look to the situation of executors and administrators at and after the time of its passage, up to the year 1789. ■

Before the act of 1715, executors were in some cases entitled to the surplus of the personal estate undisposed of by the will. This act does away that sale in part. § 7, “No executor or administrator shall take or hold himself (according to the nature of the ap-praisement)'more of the deceased’s estate than amounts to his necessary charges and disbursements and such debts as he shall legally pay within 12 months after administration granted. But all such estate so remaining shall, immediately after the expiration thereof, be equally and indifferently divided and paid to such persons to whom the same is due by this act or the will of the deceased; such person or persons, or some other for them, giving good security,” &c. That part of the rule which remains is where there is no legatee or creditor, nor next of kin, to whom it can be paid. The executor is not directed, as the administrator is, to pay it into the treasury, and therefore must keep it himself.

By this act of 1715, the executor or administrator was to pay over the estate to legatees and distributees after the expiration of one year; and was liable to creditors notwithstanding the intermediate insolvency * of such legatees or distributees, and their inability to refund when called for the security they are give is to him for his indemnification. The words are, “ giving good security, that if any debt or debts truly owing by the deceased shall be afterwards paid for and recovered, or otherwise duly made to appear, that then, and in every such case, he or they shall respectively refund and pay back to the executor or administrator his or her ratable part of that debt or debts, with the charges of the executor or administrator, by reason of such debt or debts out of the part or share allotted to him or her, thereby to enable the said executor or administrator to pay and satisfy the said debt or debts, so discovered after distribution made as aforesaid.” The executor could not plead fully administered, and support it by proof of the distribution. He was liable to pay the creditor de lords propriis, assets having come once to his hands, and could never be reimbursed if the obligees become unable to refund. This evil was attempted to be removed by the limitation of seven years. Experience showed that insolvencies happened within the time, by which, as also by the removal or death of the obligees and sureties, and by dispersion of their estates into various hands, and to various parts of the world, executors and administrators were oftentimes much injured. The act of 1789, ch. 23, endeavored to cure these evils. It gave a longer time for administration, two years instead of one. So far the act of 1715 is altered. At the end of this time they required from the legatees and distributees a bond for refunding, made payable to the chairman, for the use of the creditors; after this they were not bound to give bond to the executor or administrator. So far, also, is the former law changed.

After these bonds are taken and lodged in the office and recorded, the executor may plead fully administered, no assets, or not sufficient assets to * satisfy the plaintiff’s demand. And if such plea be found in his favor, the creditor shall proceed by soi. fa. on the bonds. Here is a complete alteration of the law from what it was : in the obligee, the plea of fully administered, the sci. fa. by the creditor, and the discharge of the executor or administrator. He needs not any limitation after this, for if he has distributed and taken bonds, he may plead fully administered; if he has not distributed, the assets are in his hands. The provision made in his favor by limitation of seven years is suspended by another and better provision within the purview or body of both acts ; and it is repealed because the act of 1789, ch. 23, § 6, declares void and of no effect “ all laws and parts of laws within the purview and meaning thereof.” The Assembly meant to provide for the executor by giving him the plea of fully administered, and by referring the creditor to the bond of the legatees and distributees, in place of protecting him by the seven years’ limitation. If he pursues the act of 1789, ch. 23, § 2, it is impossible that he can ever need the act of 1715, or ever have cause to plead it. This is a provision on the same subject; both acts have the same object in view, and it is better accomplished by the latter than the former law. The danger to executors from the inability, death, and removal of legatees and their sureties, is completely obviated, and by other means than the seven years’ limitation. Does not the Legislature, in these particulars, legislate upon the same subject, with the same view, and having the same objects before them in both these acts ? Do they not plainly fall within the words and meaning of the act of 1789, ch. 23 ?

It is said the whole effect and operation of the act of 1789, ch. 23, depends upon the advertisement required in § 5; and that it is only operative where such advertisement is made. If it be so, the inference is admitted to be correct; and that leads to another * inference, that it is not a repeal of the act of 1715. Can it be the meaning of the Legislature to render the whole act void, if the advertisement be not made ? Consider in whose favor is the limitation contained in § 4, “ Creditors of any person deceased, if resident within the State, shall within two years, and if without the State, shall within three years from the qualification, &c., exhibit and demand, &c., and if they fail to sue within these periods, shall be barred.” There is a saving for infants, persons non compos mentis, and femes covert. It is not for the benefit of executors or administrators; for they are protected by the bond and preceding provisions of the act. It is for the benefit of legatees and distributees who give bond. They are not to be forever liable ;. but are free from the demands of creditors if they do not sue within the prescribed time. Here also is a new provision not embraced in the former act. Will the legatees and distrib-utees and their sureties lose the benefit of this limitation, and be left exposed forever to creditors, merely because the executor fails to comply with the requisitions of the law upon him ? That is too much power to vest in him, especially when it is considered that this is not the only mode of giving notice to those concerned, and that the information to be conveyed through the medium of publication is not in one time out of a thousand the only medium through which it is conveyed. It is provided for the greater caution ; but it is not a sine qua non. Surely the law ought not to be so construed as to make the directions in § 5 a precedent condition, and thereby place it in the power of the executor to give to the legatees and distributees the benefit of the limitation in their favor or not, at his pleasure. At all events, if a condition precedent, it should not be any further so than the creditor has suffered or is likely to suffer by the non-performance of the condition. If he has notice without the advertisement, he * ought not to be excused for want of it. And a plea of seven years elapsed and no suit brought by the creditor, would be a good plea in bar, unless he could reply no advertisement and no notice by any other means; which averment could hardly ever be made; for the death of every man is heard of, some more extensively than the advertisement of their executor. The fifth clause, therefore, cannot be conditional. It -is directory, like the law for advertising sales, which administrators or guardians are required to make. Again, if it be a condition precedent; then in case of failure the creditors are not bound, and then the exception in favor of persons under disabilities cannot take place. If none are barred, none can be excepted from the bar. And then disabled creditors will be barred in seven years by the act of 1715, who would not be barred after seven years until the removal of their disabilities by the act of 1789. Thus a favored class of creditors will be deprived of the privileges given to them by the act of 1789, for no fault of their own, but by the culpable neglect of the executor, who has not the inducement of present benefit, nor the dread of personal inconvenience to urge him to his duty. That cannot be the true construction of an act which leads to such a result. Their privileges, so valuable and important to them, cannot be dependent upon the mere whim and caprice of the executor or administrator, as they would be if they were to be enjoyed or not, as he thought proper to advertise or not. The advei’-tisement is really in its own nature almost wholly unimportant, and when its ends may be accomplished in most instances as well without as with the publication required, it is impossible that the Legislature could have intended to make the whole act and all the effect of it depend upon such publication. They could not intend to place the legatees completely in the power of the executor, so as to make the plea of this limitation depend upon a contingency so precarious * to the legatee, at the same time that theexecutor was safe, whether he published or not, by his plea of fully administered. Either this is the case, or for want of the advertisement the bond and security given to the chairman is also void; which breeds still greater confusion, and has not yet been advocated, but is a consequence deducible from the conditionality of the fifth section. So many difficulties show manifestly that the fifth section is not conditional, and that the act of 1789, ch. 23, takes effect whether the advertisement be made or not. And then what need is there for the seven years limitation ? If the executor after two years, and distribution made and bond taken and recorded, cannot be liable to a creditor, how is it possible that the same act which exempts him from the action of the creditor, can also provide for him by a limitation of time, in case he should be sued by a creditor ? Let us try by another experiment whether the seven years’ limitation be in force or not. A, a married woman, is the creditor of B. He dies, and seven years expire, and then the husband of A dies; can A recover against the executors of B ? If she can recover, then the seven years’ limitation is not in force; for that is a positive bar to her : and if she cannot recover, then the act’ of 1789, ch. 23, is not in force ; for it positively enables her to recover after the removal of her disability.' And if one or the other must be of no effect, all will agree that it is the act of 1715.

After going thus far, there yet remains great difficulties to encounter. The adjudications of the Supreme Court of the United States, and of the court of North Carolina, are upon this point adverse to each other. One decision of the Supreme Court of this State doubts which of the two is right, and another decision of our Supreme Court joins the opinion of the North Carolina judges. There is no hesitation in saying we should follow the decisions of the * Supreme Court of this State. Where is the mischief, if we adhere to the opinion that the seven years’ limitation is not repealed, and also to our previous opinion that the act of 1789 is absolute, and the fifth section directory? The people will still have the benefit of the act of 1789, and creditors will not be bound by the act of 1715, in such cases where they are allowed by 1789, ch. 23, to sue after the removal of their disabilities. We ought to be bound by precedent in cases where much harm will not follow an adherence to it. Uniformity is of more value than the attainment of small advantages acquired by deranging it. Thus far we ought to go and to hold both acts to be in force, unless in parts where they are positively irreconcilable, and then adhere to the directions of the act last passed into a law. In this view the plea may be good, and if a proper affidavit be made to evince a belief of its verity, it ought to be remanded for an issue to be joined upon it. If no such affidavit be made before the end of this term, then judg ment ought to be entered for the plaintiff.

It will not be amiss now to say something of heirs and of the real estate, and how they are effected, if at all, by these acts, this subject being intimately connected with the other which we have just considered.

In the year 1715 an heir could not be sued upon a judgment against his ancestor; for the bond was merged in the judgment. He could only be proceeded against by sci. fa. founded upon the judgment, and be subjected by execution to an extent of one moiety of the land, which the creditor should hold as a tenant by elegit. The executor was bound to pay it if he had assets in preference to most other debts, and could be sued upon it. If no judgment were given against the ancestor, the heir could not be sued except upon a bond in which the ancestor and his heir were specially named. As to all other debts * by specialty or single contract, he was not liable to be sued. The act of 1715 could not bar the creditors from suing the heir upon them after a certain lapse of time, since upon them he could not be sued at all. As to the debt due by bond, in which he was specially named, the creditor might sue the heir or executor at election. The present assets were bound to retribute the heir, if the creditor forced payment from him instead of the executor. 2 Viner, 120, 469, 477; 2 Vern. 349; 14 Viner, “ Heir,” Letter U; 2 C. D. “Chancery,” 3, P 3; 2 Vern. 43; Hard. 512. The personal estate is the primary fund for the payment of debts, and has been considered so from the earliest periods of our juridical history to this day. The heir could not plead that there was an executor or administrator, or that he had assets. The judgment against him bound his lands from the day the writ issued against him, and the whole of his lands were liable, and not a moiety only. A devise or alienation by the ancestor did not hinder the plaintiff’s remedy being remedied by the 3 and 4 W. & M. ch. 5, and the 3 and 4 W. & M. ch. 14. An alienation made by deed, a devise for the payment of debts remained, as at common law. Vide 3 Lowry, 119; 2 Saund. Rep. 7, note 4, 5 C. D. “Pleader,” 2, E; 3 Dy. 204. Thus stood the law concerning the heir in 1715. In that single case in which the heir was liable to be sued, the personal' estate was subject to his reimbursement ; and whenever the personal estate became exonerated so that the creditor could not resort to it, it must of course follow, that that could not be done by circuity which could not be done directly, and then either the heir must be discharged simultaneously with the personal estate, or the personal estate be exonerated by throwing the burden on the real estate, which latter is directly against the rule of law which exonerates the real estate by throwing the burden ultimately on the personal estate ; and then if either this ancient rule must * be abolished, or the bar be extended to the heir also, the latter alternative ought to be embraced, considering the long continuance of the rule, and the tenacity with which our laws have adhered to it to this day. Were we not to decide so, then a creditor, by delaying to make claim till after the limited time, might discharge the personal estate, and impose the burden of payment upon the real estate, making it the only ultimate fund where by law it is only the secondary one. And if this be so with respect to obligations in which the heir is specially bound, much more ought it to be so with respect to the new debts to which he is made liable by the 5 George II. ch. 3. That law subjects the heir to all just debts, in like manner as he was before liable for specialty debts in which he was specially named, to be levied by executor as upon personal estate. Before this act, the personal estate alone was liable to these demands. After the act it was the primary but not the only fund. Lands in some of the provinces were sold by executors under this act as chattels. In North Carolina, however, the personal estate was considered as the primary fund, out of which eventually payment was to be made, and that idea is expressly recognized by the act of 1778, ch. 2, § 29. The sheriff is to levy his fi. fa., in the first place, upon the goods and chattels, if any there be ; and in 1784, ch. 11, § 5, the heir may plead that the executor or administrator hath not fully administered. The same idea is preserved, 1789, ch. 39, § 1. If the real estate could not be sold in the lifetime of the debtor,- so long as there was any personal estate to be found, on his death it continued first liable still, and by the act of 1784 the heir was allowed to plead what formerly he could not plead, that the executors had, assets. What would be his defense if hi were first sued by the creditor, passing over the executor ? Might he not plead assets in the hands of-the executor as well as he could plead it to a sci fa., upon a judgment against the * executor? Why not in the latter case as well as in the former, at least with respect to such debts as he was made liable to by the act of George II. ? The executor, having the possession of the papers and writings of' the testator, can better defend against them than the heir, who has not the possession, nor any means to obtain the possession of them. Convenience points out this course as preferable to the expensive one of suing the heir and recovering against him, leaving him to sue the executor for his reimbursement. The result of these reflections is, that of the personal estate must first be i’esorted to, and judgment be obtained upon the plea of fully administered, as a foundation for the sci. fa. against the heir, before he can proceed against them. A bar to the creditor as against the personal estate, must also be a bar as to the real estate, which cannot be reached' but by means of the sci. fa. And that cannot issue but upon a judgment founded upon a full administration, which cannot be rendered when the creditor is barred by the act of limitations.

This limitation would be nugatory if the creditor could recover against the heir, and he against the executor or distributee, and would wholly overthrow the rule that the real estate would not be liable so long as any personal remains. It would turn the creditor from the personal to the real estate, exonerating the former, and charging the latter against the spirit of our laws, exhibited in so many acts of Assembly and juridical decisions as to have become a fundamental rule of our jurisprudence, which ought not to be superseded by conjecture, and has a far better claim to preservation than the creditor has to a non-extension of the limitation beyond the personal estate. The conclusion is, that where the creditor is barred as to the personal estate, he also is barred as to the real estate, and of course that there is a new provision by the act of 1789, upon this subject, differing from that of 1715 ; for if barred in two or three years, he must, if necessary, '* be barred in less than seven, and can never have occasion to correct. Still, however, it may do no harm to consider the seven years’ limitation as in five, leaving it to the choice of heirs to use it in preference to a shorter time, if they choose to do so. It is probable, therefore, that the real estate is protected by these acts of limitation, as well as the personal estates, and becomes discharged whenever the personal estate does; that is to say, at least from all such actions as are made to be against the heir and real estate, by the statute of George II., improved and amended by subsequent statutes.

Affirm the judgment of the Circuit Court.

* Whvte, Judge.

This is an adjourned case by consent from the Circuit Court of Davidson County, and as far as is necessary to notice it, is as follows: Tyre Harris, on the 14th January, 1800, executed his sealed instrument to Alexander Johnson, covenanting thereby to convey a tract- of land by good title to the said Alexander Johnson (upon request). Tyre Harris died on -, jL801, and at the April term of the County Court of Davidson, in the year 1802, administration of, &c., was committed to the defendant, Susanna. On the 28th February, 1809, the said sealed instrument was exhibited to the defendants, and they were requested to convey, &c. On the 9th of March, 1809, Alexander Johnson brought this suit in covenant against the defendants by writ returnable to the April County Court of Davidson, at which time a declaration was filed, and an agreement on the rule docket respecting the other pleadings. At April session, 1810, the cause was tried upon the pleas covenant performed, fully administered, no assets, and issues joined thereon; verdict in favor of the plaintiff on all the issues, and damages assessed to $1,165.50, and judgment thereon. In 1811 the cause, by certiorari issuing from the Circuit Court of Davidson, the 14th March, same year, and filed with the transcript in said Circuit Court the 10th June following, was removed. At September term of the Circuit Court, the plaintiff’s death was suggested, and the suit revived in the name of his executor, John Johnson, and continued from term to term, until November * term, 1814, when by leave of the court, upon affidavit, additional pleas were put in; first, that Tyre Harris died in -, 1801; administration granted April, 1802; that she adver-vertised within two months, agreeably to act of Assembly, and the plaintiff, who was a resident within the State, did not demand and bring suit within two years after the ratification. Replication, did not advertise agreeably to act of . Assembly, and issue. Second plea, that Tyre Harris died in-, 1801, more than seven years before the commencement of this suit, and plaintiff did not make claim of said demand or bring suit within seven years next after the death, &c. Replication, that on 28th February, 1809, and within seven yeai’s after the death, &c., plaintiff made claim and demand upon the writing, &c., and defendant promised to pay. Rejoinder, protesting defendant did not promise to pay; they say plaintiff did not within seven years next after the death, &c., make claim of said demand by bringing suit; and general demurrer thereto by way of surrejoinder. May term, 1815, verdict on all the issues in favor of the plaintiff, and damages assessed to fl,224.24¿; no judgment given on the demurrer.

The principal question between these parties presented by this demurrer to this court for its opinion is, whether the expression in the ninth section of ch. 48 of 1715, of “ 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,” means that suit shall be brought within seven years by the creditor, or otherwise; that is, that the words, “make their claim” may mean a different application than by suit, as a parol demand or request to pay, a written demand or a request, &c.

Upon looking into the plea, replication, rejoinder, and demurrer, sofríe doubts have been suggested whether * these pleadings bring this question properly and substantially before the court or not. It' will be necessary to dispose of this last question first, inasmuch as it will be unnecessary to give an opinion if the case does not judicially exist to require it. The demurrer is taken to the rejoinder. The first thing to be noticed, then, is the rejoinder. It says, “ The plaintiff did not within seven years make claim of his demand by bringing suit. “ This is a certain, clear, distinct proposition, disclosing one single issuable fact, and the conclu-soiu is to the contrary. The rejoinder, therefore, is sufficient if it supports the plea, and is not a departure from it.

The plea is in substance, “ that plaintiff did not make claim of said demand, or bring suit within seven years.” The question here is upon the expression of the pleas; does it mean two distant matters or one only ? Is make claim of said demand or bring suitj synonymous to the pleader, and a double expression of the same idea, to wit, bringing suit ? If it is, it must be admitted to be an inartificial mode of expression; but taking it the other way, the strongest against the pleader, to wit, that it means two distinct things, the one a demand by suit, the other a demand in some other manner than by suit, as by parol, or by writing, and thereby constituting duplicity, what is the consequence ? Does a general demurrer reach it? It does not; duplicity in pleading, or the alleging several distinct facts, is only to be taken advantage of by special demurrer (5 Bac. Abr. 463, 464; Tidd, Pr. 618); for the party must show specially in what the doubleness consists, being only matter of form, and clearly within the statute of 27 Elizabeth ch. 5 (Tidd’s Pr. 648, and authorities therein cited); since which statute, and the 4th Anne, ch. 16, the party in a general demurrer can only take advantage of matters of substance. Tidd, Pr. 650. The party here have received this formality by not demurring specially, and pointing out the matters in which the duplicates consists, * and replying to the plea. The next question is, is the rejoinder a departure from the plea ? Quite the reverse; if the plea advances two matters, it supports one of them, at least the most important one, otherwise it consolidates the two matters of the plea into one, and is explanatory of the plea. There then seems to be a complete issue between these parties upon this record, and it may require the opinion of the court upon another point beside the one already mentioned to decide tlie case. The first is, whether the expressions of “make their claim” in the act of 1715, means suit or action ; secondly, whether the act of 1715, ch. 48, § 9, is in force. If the court should be of opinion in the affirmative on both points, then a bar is effectual, and judgment must be given for the defendant. But if the. opinion of the court should be in the negative on either, then judgment for the plaintiff.

As to the first point, this depends upon the import principally of the word claim, as used in this ninth section. Claim by the common law means a challenge by any man of the property or ownership of a thing which he hath not in his possession, but is wrongfully detained from him. Plowden, 257; Butler’s note on Co. Litt. 250 a; 1 Lilly’s Abr. 386. When the acts of Assembly are •looked into we find this meaning enlarged and extended, and that claim is used to signify not only a challenge of the property of a thing out of possession, but is used also to mean the right or title to this thing out of possession ; and still later it is used to mean the thing itself that is so out of possession. An instance of the first or common law meaning is in 1715, ch. 27, § 3. An instance of the second meaning is in §§ 2 and 4 of the same act. And an instance of its meaning the thing itself so out of possession is in 1789, ch. 23, § 4. This last signification evidently applies not; besides, I cannot find that the term claim had acquired any such meaning at the time of the passing of the act of 1715. We * must look then to the common law claim as used in 1715, and we find several kinds of claims, by matter of record, as action, &c.; by matter in pais, as verbal claim, or continual claim. Plowd. 357; Co. Litt. 263 a. Now which of these did the Legislature intend in the section in question ? This can be best collected by attending to the object the Legislature had in view by enacting the section. It was the peace of the country, the repose of society from old demands. The policy adopted by them to secure and promote this end was the imposing a limit upon litigation and controversy, beyond which the courts of the country should not sustain their cases, and their claims or challenges of property. Policy dictated a time after which the dormant rights "of individuals for the public good should continue to sleep, and the exertions of them be restrained for the benefit of the many. This no doubt was the policy and object of the act of 1715, ch. —, § 9. Which of these claims, then, or meanings were the best calculated to further this policy ? for that one, we must presume, the Legislature intended that best announced this purpose. Say that claim by demand was intended, and what would it lead to ? It would lead to a subversion of the policy of the law by sustaining suits after seven years, to the disturbance of the public peace, for thereby many suits might be brought, which otherwise would be buried; and in addition operating a detriment to deceased persons’ estates by the delay, for thus an unfounded demand, the payment of which was refused from its incorrectness, would gain strength by time, by removing the examination of it to a period more remote from its alleged origin, and thus facilitating its establishment by perjury, which delights in obscurity; whereas a suit within the seven years might have been in time for the party to protect himself by evidence which has ceased to exist. Besides, by this con struction the act would be completely in the power of the parties; for * if demand and promise were a sufficient answer to this plea, such might be often made and as often broken, and thus suits entertained by the courts, and interests litigated, which the act contemplated to have been settled and adjusted 10 or 20 years before that time. Take the other meaning of claim, the challenge, &c., by suit, this fully conforms with the views of the Legislature, advances its policy, and secures the public peace. It is laid down in Plowd. 357, the law has no other and but repose, and the law was ordained to put a stop to contention and to make peace.

The proviso of the fourth section of 1789, ch. 23, which says, “ that if any creditor, after making demand of his debt or claim, shall delay to bring suit at the special request of the executor, &c., that then and in that case the said debt and demand shall not be barred during the time of the indulgence,” does not apply to the present case. That proviso extends only to the bar raised by the fourth ánd fifth sections, and means that when the executor has advertised agreeably to the fifth section, and the creditor has not brought his suit within the second and third years according to his residence, he shall be barred unless he delayed his suit at the request of the executor. The bar in the fourth section only operates in cases of advertisement by the fifth section, and the proviso of the former section takes the particular case out of the bar.

I am therefore of opinion that in the ninth section of the 48th chapter of the act of 1715, where it says creditors of any person deceased shall make their claim within seven years after the death of such debtor, means shall “ bring their suit ” within seven years after the death of such debtor, otherwise such creditor shall be forever barred.

The next question is, whether the said ninth section be in force or not. See my opinion in Pea and Waggoner.

See, as to departure in pleading, Haley v. McPherson, 3 Hum. 104; Dougherty v. Hunt, 6 Hum. 430. As to time within which certiorari granted, Perkins v. Hadley, 4 Hay. 143, and note sub fin. As to dismissal of certiorari, Nance v. Hicks, 1 Head, 624; Hicks v. Johnson, 3 Sneed, 326; Uhles v. Nolen, 2 Cold. 529; Chappell v. Jones, 8 Hum. 107; Stuart v. Hall, 2 Tenn. 179; Beck v. Knabb, 1 Tenn. 55; Hamilton v. Archer, 1 Tenn. 368; Hodge v. Dillon, Cooke, 279; Baldwin v. Merrill, 8 Hum. 132. See King’s Digest, 1936 et seq., 1966-72, 9056.  