
    Tunstall & al. v. Pollard’s Adm’r.
    March, 1840,
    Richmond.
    Executors and Administrators — Foreign Executor— Liability Where He Brings Assets in State. — An ex’or having taken prohat of testator’s will and letters testamentary in England, and collected the assets of testator’s estate there, and brought them with him to Virginia, but having never qualified as ex’or in Virginia, is liable to be sued by the legatees in the court of chancery of Virginia, for an account of his administration, and for the legacies that remain unpaid.
    
    Same — Same—Liability of. — An english ex’or collects the assets of testator’s estate in England, brings them with him to Virginia, and dies here in 1807, indebted to testator’s estate, without having qualified in Virginia; the debt he owed his testator’s estate is entitled, in the administration of his own estate, to priority over all his other debts.
    Same — Deceased Executor — Debts Due to Testator’s Estate — Preference—Statute.—The statute of 1705, ch. 33, § 13, giving preference to debts due from deceased ex’ors to their testator’s estates, in the administration of the estates of such ex’ors, was not repealed by the statute of 1748, ch. 4, § 13, notwithstanding the general repealing ^clause therein contained, or by the statute of 1785, ch. 61, § 50, or by the revised statute of 1792, in pari materia; those statutes subsequent to that of 1705, containing nothing inconsistent with it, and being only cumulative.
    Same — Limitation of Actions — Duty to Plead Statute.— The 17th sections of the statute of limitations, providing that debt or scire facias on judgments against debedents in their lifetime, shall not be brought against their representatives, after the expiration of five years from the qualification of a representative, and that such judgments shall, after the expiration of five years, be deemed to be paid and discharged, is a bar to debt or scire facias on such judgments against an adm’r of the deceased debtor, though no assets of the debtor’s estate came to the hands of the representative within five years after his qualification; and the adm’r is bound to plead the statute to actions of the judgment creditors, in favour of other creditors prosecuting claims to which the limitation does not apply.
    Same — Same—Same.  — And it seems, the representative is bound to plead that statute in all cases to which it applies to protect the decedent’s estate, for the benefit of other creditors, or of legatees or distributees, of the decedent.
    In May 1780, Camm Garlick of King- William county, made and published his will and testament, whereby he devised and bequeathed his real and personal estate in Virginia, to and among his wife Mary, and his three children, Samuel, Sarah and Mary Camm Garlick, and appointed his brothers, Samuel and John Garlick, his executors; and shortly after making this will, he went to England on a visit to his paternal uncle, Edward Garlick, who resided near Bristol. His uncle died soon after his arrival in England, and by his last will and testament bequeathed to him a large legacy, consisting chiefly, it appeared, of moneys due to that testator. Whereupon, in December 1781, Camm Garlick, then remaining in England, made an additional will and testament, for the purpose of disposing of the property which he had lately acquired under his uncle’s will; whereby he confirmed the will he had made in Virginia; and, out of the legac}7 bequeathed to him by his uncle, he bequeathed an annuity of ^50. sterling to his wife for life, and ^"500. to Benjamin Pollard, *¿2500. to his son Samuel, and ^1500. to each of his daughters Sarah and Mary Camm; and appointed Benjamin Pollard and Thomas Hall executors of this his will made in England, and guardians of his three children, till such time as the monej’s he thereby bequeathed to them could be paid to the persons whom he had, by his will made in Virginia, appointed their guardians, (meaning, no doubt, Samuel and John Garlick, whom he had appointed executors of his Virginia will, though not, as he supposed, guardians of his children). Immediately after making and publishing this will in England, the testator Camm Garlick went to Portugal, where he died in 1782. Pollard and Hall joined- in proving the english will in the prerogative court of Canterbury, and procured joint letters testamentary ; but Pollard alone collected the english assets of the testator’s estate, or at least far the greater part of them, and in 1783 came to Virginia, bringing with him the assets of the estate which he had -collected in England. Samuel and John Garlick, the executors named in the Virginia will, proved that will together with an authenticated copy of the english will, in the county court of King William, in March 1784, and qualified as executors. Pollard paid to John and Samuel Garlick, a large portion of the assets of their common testator; which he had collected in England and brought with him to Virginia, and they made some payments to the legatees on account of the legacies bequeathed to them: but it did not appear, either that Pollard paid over to the Virginia executors all the english assets which he had received, or that they paid over all the money they received from Pollard to the legatees.
    Leonard Tunstall and Mary Camm his wife who was one of the daughters and legatees of the testator Camm Garlick, in 1799, exhibited a bill in the high court of chancery of Virginia, against the Virginia executors *Samuel and John Garlick, and the english executor Pollard, setting forth the two wills of the testator, and the qualification of Pollard as executor in England, and of Samuel and John Garlick as executors in Virginia; charging each and all of the executors with waste, and appropriation to their own use, of the assets of their testator’s estate, which they ought to have applied to the payment of the legacies, a large portion of which, they alleged, yet remained due; and praying accounts of the administration of the defendants respectively, and a decree for the balance of the legacies yet due. Upon the division of the high court of chancery into district courts, in January 1802, this suit was transferred to the district court of chancery of Williamsburg. And there Benjamin Gaines and Sarah his wife, who was the other daughter of the testator Camm Garlick, Samuel his son, and Mary his widow, exhibited a like bill against the same parties, praying the like relief. The Virginia executors Samuel and John Garlick, in their answers to these bills, said, that no' settlement had ever been made, between them and the defendant Pollard, who had had the management of that part of the estate which was in England, or, between them and the legatees, of their own accounts of administration. And the english executor Pollard said, that he had, out of the assets received by him in England, discharged a large amount of debt due from the testator’s estate to creditors in that country, made several payments to the legateés, and paid over large sums of money to the Virginia executors, and they had paid large sums to the plaintiffs on account of their legacies, so that the balance due from him, if any, was trivial; but he admitted, that the accounts remained to be settled; and he made no objection to his liability to render a,n account of his administration before this court. Some of the plaintiffs and all of the defendants died 'pending the suits, and the proceedings were revived for and *against their representatives, so that the causes stood in the names of Mary Camm Tunstall, plaintiff in the first suit, and Sarah Gaines, the adminis-tratrix of Samuel the son of the testator, and the administrator of Mary the widow, plaintiffs in the second suit, against Benjamin Pollard administrator of the executor Pollard, the administrator of the executor John Garlick, the administrator de bonis non of the executor Samuel Garlick, and the administrator of his first administrator, defendants in both suits.
    Of the several accounts ordered and taken in these suits, it is only necessary to state here the result of the account of the english executor Pollard’s administration of his testator Camm Garlick’s estate, taken in 1820, long after the executor’s death; by which it appeared, that he was indebted to the estate for a balance of 8984 dollars with interest from the 31st December 1800. But there was some evidence in the cause to shew, that he had made large payments to the Virginia executors, which appeared not to have been credited to him in the account. No account was taken of Benjamin Pollard the younger’s administration of Pollard the executor’s estate, it being agreed that Pollard the executor died utterly insolvent.
    Upon the hearing in November 1820, a decree was entered, by consent of the parties, that the administrator of the executor John Garlick should, out of the assets of- that executor’s estate in his hands, pay to Mary Camm Tunstall, the plaintiff in the first suit, the sum of S169 dollars, and to Sarah Gaines one of the plaintiffs in the second suit, 4393 dollars, with interest on both sums from the 1st of January 1801; and that the administrator of the first administrator of the executor Samuel Garlick, (it being admitted that he had assets in his hands) should pay to mrs. Tunstall the sum of 1696 dollars, and the same sum to mrs. Gaines, with interest from the 1st January 1801 — That Samuel the
    *son, and Mary the widow of the testator Camm Garlick, appearing to have received all they were entitled to, the bill in -the second suit, so far as it prayed relief for them, should be dismissed — And that both bills should be dismissed as to Pollard the younger, the administrator of Pollard the english executor of Camm Gar-lick.
    The foregoing history of the proceedings in the former suits is necessary to an accurate understanding of the controversy in this suit, which grew out of them.
    
      Mary Tunstall and Sarah Gaines, in September 1822, exhibited a bill, in the superior court of chancery of Williamsburg, against Benjamin Pollard as the administrator and sole heir of the elder Pollard executor of Camm Garlick, and the representatives of the executors John and Samuel Garlick, and other parties; wherein they represented, that the decree in the former suits against the representatives of John and Samuel Garlick, was rendered for monej's due from them respectively on account of their own executorial transactions, and on account of the deficiency of Pollard the english executor of their testator; that having sued out executions on their decree against the representative of John Garlick, they had obtained satisfaction of only a small part of their claim on the decree against him, and encountered impediments to further proceedings, which it required the aid of the court to remove; but when these impediments should be removed, the estate of John Garlick would still be inadequate to satisfy the decree. And as to the defendant Pollard, the bill suggested, that he was in possession of real estate inherited from his father Pollard the executor of Camm Garlick, of which they prayed a discovery and account, and that the same should be subjected to the debt which his ancestor owed to the estate of Camm Garlick.
    This bill was, in the sequel, dismissed, on the motion of the plaintiffs, as to all the defendants expect Pollard.
    *Pollard filed his answer in January 1825, in which he said, that he and his sister Margaret the wife of George Toyall were the heirs at law of his father, but that they held no real estate derived from him, by gift, devise or descent, he having, in fact, left no property whatever at his death, which then came to the hands of the defendant. But he said, that since the commencement of this suit, namely, in August 1824, some assets had come to his hands as administrator of his father, on account of a claim, which he had presented, under the treaty of February 1819 between the U. States and Spain, for a loss sustained in 1796; which assets, however, he had fully administered, by applying the same in satisfaction of debts due upon judgments recovered against his intestate in his lifetime; debts, he insisted, of superior dignity to the debts claimed by the plaintiffs; for the debts they claimed were, in their nature, only simple contract debts of his intestate, since he had qualified as executor of Camm Garlick in England, and his executorial bond given there did not stand on the same footing as an executor’s bond given in Virginia, nor were the debts of the executor of the same dignity.
    In 1827, the plaintiffs filed a supplemental bill in which they made Boyall and wife parties defendants, and charged, that Benjamin Pollard the elder, in May 1799, made a conveyance and settlement of real estate to the use of his wife, which upon her death had come to the hands of Benjamin Pollard the younger and Boyall and wife; that the conveyance and settlement were voluntary, fraudulent and void, as to creditors of Pollard the elder; and that these lands ought to be held subject to the plaintiffs’ claims. And they called upon the defendant Pollard to render an account of the assets of his intestate’s estate which he had received since the commencement of the suit (amounting, they alleged, to about 11000 dollars) and to state' the judgments against his intestate in payment of which he had ^disbursed those assets, and all the circumstances attending those payments made by him. They insisted, that the debt due to them from the intestate, being a debt due from him as an executor, was of higher dignity than any debts due upon judgments against him: that those judgments having been rendered against the intestate in his lifetime, and he having died in 1807, and there having been no proceedings upon them for some eighteen years after the qualification of the administrator, there could not have existed any valid claim upon them, and if the administrator applied the assets to the satisfaction of them, such payments were merely voluntary on his part, and a waste of the assets: that the administrator had sought to effect a compromise of the judgments, and to get releases or transfers of them on payment of a small part of their nominal amount, and then to use them as a protection of the assets to the whole nominal amount of the judgments; thus making a trivial sacrifice to claims which could never have been enforced if he had resisted them, in order to protect the residue of the assets from the claims of the plaintiffs and other creditors of his intestate.
    As to the defendants Royall and wife, the bill was taken pro confesso. The defendant Pollard put in an answer, in which he referred to the decree in the former suits of November 1820, entered by consent of the plaintiffs, whereby it was decreed, that the debt due from his intestate as executor of Camm Garlick should be paid by the representatives of the other executors John and Samuel Garlick, and the bills as to him were finally dismissed. He said, that the conveyance of real properly made by his father to his wife was founded on an antenuptial agreement, and so was a conveyance for valuable consideration, and this defendant and his sister mrs. Boy-all held the property under a devise from the wife who was the bona fide owner of it; and that, moreover, his intestate being in custody at the *suit of one William Coker in 1804, took the benefit of the statute for the relief of insolvent debtors, and surrendered in his schedule all interest he had or might have in the very property which he had before conveyed to his wife. And as to the other allegations of the bill, he said, that the sum he had received as administrator of his father upon his claim under the treaty with Spain, was 10310 dollars. That one of the judgments which he had discharged out of those assets, was a judgment recovered by Margaret Kearnes against his father in his lifetime, upon which suit was brought against him as administrator, in September 1824, immediately after his receipt of the assets; knowing it to be a debt of the highest dignity, and presuming he should be obliged to pay it, he advised his brother in law George Goyall to purchase the claim; Eoyall purchased it for 1000 dollars; it was prosecuted to judgment,, and execution sued out, upon which he paid Royall the full amount, 2552 dollars, in April 1825. That the other judgment was the judgment of William Coker against his intestate, upon which a suit was brought by mr. Wickham, in 1824, against this defendant, in the circuit court of the U. States held at Richmond; he advised another relation, William Eoyall, to purchase this claim from mr. Wickham: William Eoyall purchased it accordingly, for 5400 dollars, which he paid to mr. Wickham; Coker’s suit was prosecuted to judgment; and the defendant paid the full amount, 6894 dollars, to William Eoyall, in June 1825. He insisted, that the debt claimed by the plaintiffs was only a simple contract debt of his intestate; and then he stated, that he held two bonds executed by,his intestate to James Catón deceased, for £500. sterling each, the whole of which, with interest from December 1796, was still due; and that the defendant was the executor of Catón, and had a right to ' retain the amount of these *debts out of the assets of his intestate, in preference to the debt claimed by the plaintiffs.
    The facts stated in the answer were put in issue by a general replication.
    It appeared, that Pollard the intestate of the defendant Pollard died in 1807. Administration of his estate, it seemed, was first committed to the serjeant of Norfolk borough; it did not appear when. The accounts of the defendant Pollard’s administration shewed, that the administration was granted him to in May 1812.
    The judgment of Margaret Kearnes against Pollard the intestate was recovered in November 1802, .and the suit upon it against Pollard the administrator, was brought in September 1824, and judgment recovered against him by default in April 1825.
    Of the judgment stated in the answer to have been recovered by William Coker against Pollard the intestate, of the proceedings by which he was discharged from custody at the suit of Coker in 1804 as an insolvent debtor, and of the judgment recovered by Coker against Pollard the administrator, no evidénce appeared by the record to have been exhibited.
    It appeared, that the full amounts due upon Kearnes’s and Coker’s judgments were paid by the defendant Pollard, as stated in his answer.
    The bonds of Pollard the defendant’s intestate to Catón, for £500. sterling each, which the defendant said in his answer, he held as the executor of Catón, did not appear to have been exhibited.
    The accounts of the defendant Pollard’s administration of his intestate’s estate having been referred to a commissioner, it appeared by the report, that if the administrator was entitled to credit for the. sums he had paid in satisfaction of Kearnes’s and Coker’s judgments, he had fully administered the assets he had received; *if not, he was indebted to the estate in a balance of 7768 dollars, with interest from the 18th June 1825.
    The cause was transferred, first, to the superior court of chancery of Richmond, and finally to the circuit superior court for Henrico and Richmond; where, upon a hearing in 1837, the bill was dismissed. Upon the petition of the plaintiffs, this court allowed them an appeal..
    The cause was argued here (very elaborately and ably) by Brooke for the appellants, and R. ,T. Daniel for the appellee Pollard.
    I. The present suit being founded on the proceedings in the former suits of the plaintiffs against John and Samuel Garlick the Virginia executors, and Benjamin Pollard the english executor, of Camm Gar-lick ; and the object of this suit being to recover from the administrator of the eng-lish executor, the balance of 8984 dollars, appearing, by the account of his administration taken in the former suits, to be due from him to the estate of his testator; the first question was, whether Pollard, the english executor, who took probat in England, but never qualified in Virginia, was liable to be sued by the legatees of the testator in the court of chancery of Virginia, for an account of the engtish assets, which he received in EngLand and brought with him to Virginia, and for the balance due from him on that account to his testator’s legatees? The authorities cited at the bar on this point, and the arguments of the counsel on both sides, are fully stated in the opinion of the court.
    II. The next question was, whether Pollard the administrator of Pollard the english executor, was justified in applying the assets of his intestate’s estate to the payment of the debts due on the judgments of Kearnes and of Coker against his intestate, in preference to the debt due to the plaintiffs?
    *Brooke contended,
    that the administrator’s application of the assets to the satisfaction of those judgments, was a devastavit.
    Eor, in the first place, he said, the debt due by Pollard the elder to the estate of his testator Camm Garlick, was a debt of higher dignity than the debts due on the judgments against him, or any other proper debt of his own. He referred to the statute of 1748, ch. 4, ? 13, 5 Hen. Stat. at large, p. 453, which provided, “that when any guardian, or person chargeable with the estate of any orphan, or with the estate of a person deceased, to him committed by any court of record in this colony, shall die so chargeable, the executors and administrators of such person so dying shall be com-pellable to pay and satisfy, out of the estate of their testator or intestate, so much as shall appear due to the estate of such orphan, or person deceased, before any other or proper debt whatsoever of such testator or intestate;” and to the statute of 1785, ch. 61, § 50, 12 Hen. Stat. at large, p. 152; which provided, that “the executors or administrators of a guardian, of a committee, or of any other person who shall have been chargeable with or accountable for the estate of a ward, an idiot or a lunatic, or the estate of a dead person, committed to their testator or intestate by a court of record, shall pay so much as shall be due from their testator or intestate, to the ward, idiot or lunatic, or to the legatees or persons entitled to distribution, before any proper debt of their testator or intestate; which provision was re-enacted, in the same words, by the revised statutes of 1792 and of 1819, Rev. Code of 1792, ch. 90, l 53; 1 Rev. Code of 1819, ch. 104, 1 60, p. 389. And he argued, that the words in those statutes, giving priority to debts due from fiduciaries to whom the estates were “committed by a court of record,” were refer-rible only to cases of administrators, guardians and committees of idiots or lunatics, to whom the estates were committed *by a court of record, not to the case of executors, who derived their authority from the will, and to whom the estates were not committed by the court; and that, therefore, in all cases of debts due from a decedent in an executorial character, whether they arose out of his transactions before or after probat, or whether he was a foreign or a Virginia executor, and if a foreign executor, whether he ever qualified in Virginia or not, such debts were preferred, in the administration of the executor’s estate, to all proper debts of his own. But if this was not the fair construction of the statute of 1748 and the subsequent statutes on the subject, it was clear, that the prior statute of 1705, ch. 33, | 13; 3 Hen. Stat. at large, p. 375, gave preference, in the administration of an executor’s estate, to the debts due from him to his testator’s estate, in all cases whatever, without distinction; for that statute provided, in general terms, that “when any person shall be chargeable as executor or administrator, or otherwise, with the estate of any person deceased, or with any orphan’s estate, and shall die so chargeable, the estate of such person so dying shall be liable to pay and satisfy such other deceased person’s or orphan’s estate, before any other debt whatsoever.” Under this statute, if the executor contracted a debt to his testator’s estate and died without ever taking probat, or if a foreign executor contracted such a debt, and then came to Virginia, and died here so indebted, such debt was entitled to priority over all other debts, in the administration of the executor’s estate by his representatives in this country. And the statute of 1705 was not repealed by the statute of 1748, or the subsequent statutes in pari materia; for the provisions of the latter statutes contained nothing inconsistent with the provision of the statute of 1705, but only extended the same principle of priority to other cases. Indeed, the statute of 1705 was never repealed until the statute of *March 1819, “providing for the republication of the laws,” 1 Rev. Code, ch. 1, ‘i 9, p. 16, repealed all statutes of a general nature, which should not be published in the new code thereby directed; with a saving, however, in favour of all rights already acquired under the general statutes so repealed.
    2ndly, He insisted, that there was no valid existing claim on the judgments of Kearnes and Coker against Pollard the elder, which could have been enforced against his administrator. Eor, some twelve years had elapsed since the qualification of Pollard the younger as administrator of Pollard the elder, and no proceedings had ever been had on the judgments since the intestate’s death. The statute, 1 Rev. Code, ch. 128, § 17, p. 492, not only made five years from the qualification of the administrator, a bar to debt or scire facias against him upon the judgments, but it provided further, that “all such judgments after the expiration of live years, upon which no proceedings shall have been had, shall be deemed to have been paid and discharged.” The remedy of the judgment creditors was barred, and, by intendment of law, the judgments were satisfied. The statute gave the administrator, in this case, a conclusive defence against the claims; but instead of availing himself of it, he suggested to his relations that they should purchase them, in order that the assets he had received might be applied to the payment of them: it was, indeed, by his collusion with the assignees of the judgments, that the debts were recovered against him. He was bound to set up the defence; he would have been bound to set it up for the benefit of the distributees of his intestate; much more was he bound to make the defence for the benefit of creditors, and especially of creditors who (as he knew) were, at the verj' time he made the payments, prosecuting their claim.
    !;'Daniel contended,
    1st, that the debt claimed by the plaintiffs from the estate of Benjamin Pollard the elder, was of no higher dignity than a simple contract debt. He was appointed by Camm Garlick executor of his english will only, and in respect only of his english estate; he took probat of the english will in the prerogative court of Canterbury, and the letters testamentary granted to him by that court authorized him to collect and administer the english assets, according to his testator’s english will. Neither could he have taken probat in Virginia; since that, if allowed, would have constituted him executor of both the will made in Virginia and that made in England, whereas the testator only appointed him executor of the latter. Accordingly, probat of both wills was, by the court of probat of Virginia, very properly granted to the Virginia executors, as to whom both instruments constituted their testator’s last will and testament. The estate of the testator Camm Garlick was never committed to Pollard, the english executor, by a court of record of Virginia, or by any court of record. Then, adverting to the provisions of the statutes of 1748, ch. 4, \ 13, and of 1785, ch. 61, $ SO, he said, those statutes gave no preference, in the administration of Pollard the english executor’s estate, to the debt he owed Camm Garlick’s estate, because Garlick’s estate was never committed to him by a court of record, as those statutes required it should have been, in order to entitle the debt to such preference; unless the criticism of the appellants’ counsel was just, that the words “committed by a court of record” were referrible only to grants of administration, and appoint-meats of guardians and committees of idiots &c. by courts of record, and could not fairly be applied to the case of an executor, to whom the estate was committed by the testator’s will, not by the court of probat. Now, he said, it was true, in one sense, that an executor’s authority and title were derived from the *will, and there were many acts that he might do, and others hich he might initiate, before probat; but the authority of the will itself, from which the executor derived his authority, could only be ascertained and consummated by the probat; nor could the executor prosecute any claim to judgment or decree, till he proved the will and obtained letters testamentary; and in Virginia, probat and letters testamentary could only be granted by a court of record. In Virginia, then, the estate of a testator might as properly be said to be committed to the executor by a court of record, as the estate of an intestate, of a ward, or of an idiot, to an administrator, guardian or committee. And it was so far from being true that the words of these statutes, confining the provision of cases in which the estates were “committed by a court of record,” were inapplicable to the case of executors, that, obviously, those words could have no effect upon the case of any of the fiduciaries mentioned but executors: for the office of executor existed, and many important rights belonging to it might be exercised, before probat of the will and qualification of the executor, that is, before the estate was committed to him by a court of record; but administrators, guardians, committees of idiots &c. could have no existence but by such commitment of the estates to them. He insisted, that the statute of 170S, ch. 33, g 13, was repealed by the statute of 1748, for the latter statute reenacted, in substance, the provisions of the former, with the single addition, that the estate should have been “committed by a court of record.” If this addition, made by the statute of 1748, was only declaratory of the meaning of the statute of 1705, it was immaterial whether the one was repealed by the other or not; and if it rendered the provision of the later statute inconsistent with that of the older, the later repealed the older. He referred to the repealing clause of the statute of 1748 —-“all and every other act *and acts, clause and clauses, heretofore made, for or concerning any matter or thing within the purview of this act, shall be and are hereby repealed.” The purview of a statute meant the body or enacting part of it; 12 ’Co. 20. It could hardly be doubted, that the 13th section of the statute of 1705 was for and concerning the same matter and thing provided for in the 13th section of the statute of 1748. And it was plain from the case of Proudfit v. Murray, 1 Call 394, that a similar repealing clause in the revised statute of 1792 concerning bills of exchange (1 Rev. Code of 1792, ch. 77; Pleasants’s edi. p. 113,) would have been held to repeal the statute of 1748, ch. 33, on the same subject (6 Hen. Stat. at large p. 85,) but for a very peculiar provision of another statute passed at the same session of 1792. He remarked further, that there had been many general revisáis of the statute laws of Virginia; that the general laws of 1748 were the work of one of those revisáis, and the statute of 1748, ch. 4, was one of the revised statutes; and that the whole purpose of such revisáis would be defeated, if every former statute on the same subjects were considered in force without a special repealing clause. The general repealing clause to be found in the revised statutes, was adopted in place of a special enumeration and repeal of former laws on the same subjects. But supposing the statute of 1705, ch. 33, g 13, giving preference, in the administration of the estate of a deceased executor, administrator or guardian, to the debt which he owed to the estate of his testator, intestate or ward, had never been repealed, yet the provision must be held applicable only to executors, administrators or guardians, to whom letters testamentary, administration or wardship, should be granted by the courts of Virginia. The appointment and qualification of such fiduciaries, were always, in Virginia, proceedings in a court of record, and so their representatives might reasonably be held bound to lake ^notice of such proceedings; but it would have been most unreasonable to hold the representative of an executor bound to take notice, at his peril, of his transactions in that character, transactions in pais, when he had never qualified at all; and much more unreasonable to hold the representatives of decedents in this country, bound to take notice that they had qualified as executors in a foreign country. The representative of a man dying in Virginia, could with no reason be required to search the proceedings of the ecclesiastical courts of England, and of the similar authorities of every nation of the civilized world, in order to discover whether he had ever qualified abroad as executor of another, and to ascertain the state of his administration accounts, before he should proceed to administer the decedent’s own estate. The duties of an english executor, the nature of the liabilities he incurred, the rank of any debt to his testator’s estate arising out of his administration, and, after his death, the duty of his representative, in the administration of his estate, in respect of such a debt, must be determined by the law of England, though the english executor died in Virginia. Now, he said, the ecclesiastical courts of England (which were the courts of probat) were not courts of record, 3 Blacks. Comm. 67, so that a debt contracted, in the course of administration,' by an executor who took letters testamentary there, was nowise a debt of record. And an executor qualifying there, was never required to give bond for his due administration, as was shewn by Green, J., in Jones v. Hobson, 2 Rand. 488, and therefore such a debt was not a specialty debt. He concluded, that the debt claimed by the plaintiff in this cause, of the estate of Benjamin Pollard the elder, the english executor of Camm Garlick, could not rank higher than a simple contract debt.
    2ndly, As to the objection, that the application of the assets of Benjamin Pollard the elder’s estate, by his administra - tor *Benjamin the younger, to the satisfaction of the judgments of Kearnes and Coker against his intestate in his lifetime, were voluntary payments, made by the administrator in his own wrong, and so, in regard to the claim of the plaintiffs, a devastavit; he said, the objection was founded entireljr upon the provisions of the 17th section o£ the statute of limitations. And he contended, that so far as the statute limited the remedy against the representatives of deceased debtors, upon judgments recovered against the debtors in their lifetime, to five years after the qualification of the representative, it was a mere statute of limitations ; and that, as a general rule, an executor or administrator was not bound to take advantage of the statute of limitations against a claim otherwise well founded. 2 Wms. on Kx’ors 1110; Earn on Assets, 448-450. He admitted there might be exceptions to the rule; but this case was not one of them. Here, the administrator knew, that his intestate was insolvent at the time the judgments were recovered against him, continued insolvent during the rest of his life, and left no estate at his death, out of which any part of the debts due upon the judgments could have been paid : that, until his receipt of the money upon his claim under the treaty with Spain, in 1824, there were no assets of his testator’s estate which could have been applied to satisfy the judgments: that, therefore, the debts claimed upon them, notwithstanding their antiquity, were justly due. A plea of the statute of limitations against such claims, under such circumstances, would have been an unconscientious defence on the part of the administrator. He was not bound to plead the statute against judgment creditors, whose claims he knew to be just, for the benefit of creditors at large, whose claims were yet older than the judgments, and were, in truth, very questionable. With respect to the provision of the latter part of the 17th section of the statute, that “all such ‘x'judgments, after the expiration of five years” (from the qualification of a representative of the deceased judgment debtor) “upon which no proceedings shall have been had, shall be deemed to have been paid and discharged;” he remarked, 1. that this provision, however peculiar, was still in the nature of a limitation upon the remedy, and at most only auxiliary to the limitation just before provided ; and the administrator was no more bound, under the circumstances of this case, to plead it against the judgment creditors, than he was bound to plead the previous provision of the same section against them. 2. That notwithstanding the generality of the words, they ought, in just construction, to be restrained to cases where the representative of the debtor received assets at the time of his qualification, which he might have applied to the satisfaction of the judgments if the claims upon them had been timely prosecuted, and could not be extended to cases, like the persent, in which the representative received no assets whatsoever at the time of qualification, nor for many years afterwards, and in which the judgment creditors prosecuted their .claims against him promptly after the assets came to his hands. 3. That the provision was obviously intended, not to protect the estate of the deceased debtor from a just debt, but to protect the representative, personally, from claims on judgments' agairfst his testator or intestate, the assertion of which was delayed till sucha time that he might fairly be supposed to h, ve administered the assets in his hands, without any actual knowledge of the judgments, in the payment of debts of inferior dignity, or even in payments to legatees or distributees: that the representative alone was entitled to avail himself of the protection, and he, therefore, had a right to waive it: that the reason on which the protection was provided for him, had no application to the circumstances of the present case, and the protection ought not to be extended '*beyond the reason on which it was founded. And 4. that the provision, that the judgments should “be deemed to be paid or discharged,” strong as the language was, must, in all reason, admit of one exception ; the exception, namely, of cases, in which it clearly appeared, that the judgments were not satisfied by the decedent in his lifetime, and could not have been paid and discharged by his representative, since he had no assets to satisfy them. The statute could not have intended to require the courts to deem judgments paid and discharged, which could not possibly have been paid and discharged. As to the imputation that the judgments in the suits of Kearnes and Coker against the administrator upon their judgments against his intestate, were recovered by his collusion; he said, it was true, that after the suits had been brought by the judgment creditors against the administrator, he suggested to his relatives the purchase of the claims, and that the judgments upon them were entered by default. But he himself reaped no benefit from the purchase made by his relatives. And, considering that an executor or administrator, in equity as well as at law, may prefer one creditor to another in equal degree, and after an action brought by one creditor, may confess judgment to another, and so give him preference, 3 Bac. Abr. Kx’ors and Adm’rs, K. 2, p. 83; Waring v. Danvers, 1 P. Wms. 295, the voluntary preference which the administrator gave to the judgment creditors of his intestate, and to their assignees, and his suffering judgments by default in their suits against him, could not be regarded as collusion on his part, of which the plaintiffs in this case could justly complain.
    III. Daniel made other objections to the plaintiffs’ claim to relief in this suit. 1st, That as the bills of the plaintiffs in the former suits, had been, with their consent, dismissed in 1820 as to the administrator of Pollard the english executor, and the plaintiffs had taken *a decree for the whole balance claimed of the eug-lish executor against the representatives of the Virginia executors, with their consent, both parties thereby admitting, that the english executor had accounted for and paid over to the Virginia executors the assets he had received; the dismission of the bills in the former suits was a bar to the present suit against the administrator of the english executor. 2ndly, That the-evidence in the former suits shewed, that the english executor had paid large sums of monjsy to the Virginia éxecutors, which were not credited to him in the account settled long after his death by the commissioner, and which, if credited, would have reduced the balance to a very trivial sum, if not wholly extinguished it. He entered into an examination of the evidence to prove that this was the true state of the case. And then he argued, that the eng-lish executor, in his answer in the former suits, having alleged that he had paid over to the Virginia executors, almost all, if not quite all, the money he had received, and declared his readiness to render his account; and the Virginia executors not having controverted that allegation, but only declared that the account was not yet settled ; the plaintiffs might and ought to have called the english executor to a settlement of his accounts in his lifetime. Their suits were brought in 1799; he died in 1807; they never called his administrator to account till 1820; and then, not for the purpose of charging him, but in order to ascertain the extent of the Virginia executors’ liability. Thus, for some seven or eight years after the plaintiffs commenced their former suits, they neglected during the english executor’s life to prosecute their claims against him with effect, and thirteen years after his death dismissed those suits against his administrator: and if that dismission was not a positive bar to their present suit, the assertion of their claims against the administrator now, should be regarded as a stale ^demand, which ought not to be entertained. It was impossible, that the accounts of the english executor’s administration could now be fairly settled; in particular, no discovery could now be had from - the Virginia executors of the moneys paid by him to them. Parks &c. v. Rucker, S Heigh 149; Carr’s adm’r &c. v. Chapman’s legatees, Id. 164; Hayes et al. v. Goode et al., 7 Heigh 453. The account reported in the former suits, shewing a balance of 8894 dollars due from the executor, ought not to be taken as evidence of the debt, because the plaintiffs having abandoned all claim against the administrator, and asked no decree upon the account, he had no motive to contest or examine its correctness, and the court did not and could not pass any opinion upon it.
    Brooke said, in reply, that the account of the executor Pollard’s administration of his testator Camm Garlick’s estate, taken in the former suits and reported in 1820, was taken upon notice to his administrator, who was a regular party to the proceedings: he took no exception to it then: he made no objection to it in his pleadings in this suit: it was too late to except to it now. And he maintained, that the dismission of the bills in the former suits as to Pollard’s administrator, was not an abandonment of the claim against Pollard’s estate, but a dismission of the claim against the administrator personally, because he had no assets; and such a dismission could not bar the plaintiffs’ claim against the estate of the debtor when assets came to the hands of his administrator to pay it. As to the objection, that this was a stale demand ; the plaintiffs had been prosecuting their claim for more than forty years, hitherto without effect indeed, but that was not their fault; their proceedings having been only suspended for about two years, during which they knew of no property that could be subjected to the payment of it.
    
      
      Executors and Administrators — Foreign Executors —Liability Where He Brings Assets in Virginia, — Por the proposition laid down in the first headnote of the principal case, that where a foreign executor brings the assets of the estate in Virginia he is liable to be sued by the legatees, (even though he has not qualified in this state) in the court of chancery of Virginia, for an account of his administration, and for the legacies that remain unpaid, the principal case is cited and approved in the following cases: Dickinson v. Hoomes, 8 Gratt. 414, 417, 419; Andrews v. Avory, 14 Gratt. 240; Moses v. Hart, 25 Gratt. 809; Rinker v. Streit, 33 Gratt. 666; Davis v. Morriss, 76 Va. 29; Fugate v. Moore, 86 Va. 1048, 11 S. E, Rep. 1063; Clendening v. Conrad, 91 Va. 419, 21 S. E. Rep. 818; Portsmouth Gas Co. v. Sanford, 97 Va. 128, 33 S. E. Rep. 516; Leach v. Buckner, 19 W. Va. 46; Hooper v. Hooper, 29 W. Va. 289, 1 S. E. Rep. 290; Hooper v. Hooper, 32 W. Va. 526, 9 S. E. Rep. 938; Oney v. Ferguson, 41 W. Va. 571, 23 S. E. Rep. 711. See also, Powell v. Stratton, 11 Gratt. 792.
      The proposition for which the principal case is cited in the above cases is one of the exceptions to the general rule. Por the general rule, see foot-note to Andrews v. Avory, 14 Gratt. 229. See mono-graphic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       See Vaughan & al. v. Northup adm’r &c., 15 Peters 1, and Craddock v. Turner’s adm’x, 6 Leigh 116.
    
    
      
       Same — Limitation of Actions — Duty to Plead Statute. —In Woodyard v. Polsley, 14 W. Va. 222, it is said: “It is indeed tbe duty of tbe personal representative to rely upon tbe statute of limitations in bebalf of tbe legatees and distributees and also to protect creditors. Tunstall et al. v. Pollard's Adm’r, 11 Leigh 1.” See also, citing tbe principal case for tbis proposi. tion, Seig v. Acord, 21 Gratt. 369 ; Smith v. Pattie, 81 Va. 663 ; Radford v. Fowlkes, 85 Va. 849, 8 S. E. Rep. 817. See monograpbic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   *TUCKER, P.

This cause has been argued with great ability, and some interesting questions have been presented, which require a fuller discussion than I could wish. I shall proceed to examine them as concisely as I can, without adverting to the facts farther than necessary for the proper understanding of the principles decided.

I shall dismiss the objection to the antiquity of the claim, with the remark that it was put in suit forty years ago, and has been in a course of prosecution ever since, with the exception of an interval of two years subsequent to the dismissal of the bills in the former suits as to Pollard’s administrator. That was not a dismissal on the merits: it was owing to the hopeless insolvency of Pollard’s estate, and the expectation of making the debt due the plaintiffs out of the other defendants. Therefore, it did not operate as a bar; nor can it be regarded either as an abandonment of the claim, or as a blameable laches in the prosecution 'of it. The suit was renewed against Pollard’s administrator, as soon as the fortuitous recovery - of the Spanish claim placed his intestate’s estate in a situation to pay, and it has ever since been pursued with proper- diligence. There is, then, no ground for the objection that the demand is stale, or that the dismissal of the former suits in 1820 is a bar to the further prosecution of the claim.

The next question which arises in the cause is, whether Benjamin Pollard the executor of Camm Garlick, is liable to the suit of the plaintiffs in Virginia, he having only proved the will and obtained letters testamentary from the prerogative court of Canterbury in England? Under his authority as executor, he received assets in England to a large amount, which he brought to this country, and wasted; and the suit is brought, not by creditors of Camm Garlick, but by the legatees under his will, demanding a settlement of the executorial account, and a decree for the balance which may be *found to be due them. The answer of the executor was filed in the former suits: he set up no pretence of the existence of debts in England, or of any danger to him in paying over the funds in his hands, or of any conflict between the laws of England and those of Virginia in relation to the disposition of the assets; nor did he object to the jurisdiction of the courts of Virginia, or-to their authority and power to call him to account. The whole of this matter seems to have been an afterthought of others; and it might, therefore, well be questioned, whether, if such a defence would ever have been a good one, it is now available. But as the general question is deeply interesting, and has been ably argued before the court in this and a former case, Pugh’s ex’or v. Jones, 6 Leigh 299, I prefer to rest the judgment here upon it, rather than upon the particular circumstances appearing in this record.

I am of opinion, that an executor who has qualified and received assets in a foreign country, and has brought them into this jurisdiction, is liable to be sued and to be compelled to account here, although he never has qualified as executor in Virginia, and although he may have received no assets here. I am moreover of opinion, that if suable at all, he is not to be sued as executor de son tort, which he cannot be if he be ' appointed executor by the testator; the intimation given by mein Pugh’s ex’or v. Jones, of a contra^ opinion on this point, I am now satisfied, is erroneous.

In the examination of this question, we shall best proceed by advancing towards the ultimate conclusion step by step. There are certain truths bearing a relation to the question, that cannot be controverted. Thus, it is well established in England, that an executor may be sued before probat, provided he has intermeddled with the assets. Toll. Law Ex’ors 49. And this doctrine is admitted to prevail in 'Virginia, even by those who regard the validity of the disposition of the assets *as depending upon a qualification prior or subsequent to such disposition. Munroe v. James, 4 Munf. 199. In such case, too, of intermeddling, as it is a rightful act, it is obvious, that the party is not suable as executor de son tort, which supposes a tortious intermed-dling. If, therefore, Pollard had been appointed executor in Virginia, and received Virginia assets, he would have been liable to be sued, even though he had not qualified. It is also equally clear, I think, that though the will was made in England, yet an executor appointed in Virginia and receiving Virginia assets, might be sued here before qualification. And so if the executor was appointed in England, and came to Virginia, without having qualified, and received assets in Virginia, he might be sued here. If Pollard, then, cannot be sued here, it must be either because the assets were foreign assets, or because by qualifying abroad he has bound himself to account there, and there only. It cannot be, that he is protected by the circumstance that the assets were foreign assets: for, having been brought here, they have become Virginia assets, and must be accounted for here, unless by a foreign qualification an exclusive control over them is vested in the foreign jurisdiction. It has been well settled, ever since Dowdale’s case, 6 Co. 47, that an executor in England receiving assets from abroad, is liable to account for them in England ; see Ram on Assets 235 ; 1 Crompt. & Jerv. 157, 370. And it has never been doubted, I think, that if an executor in Virginia receives from London the proceeds of a crop of tobacco sold there, he must account for them in the settlement of his accounts before our own tribunals. So that, upon the whole, it would seem the only question is, whether, by qualification in a foreign court, so’ exclusive a control over the foreign assets is vested in the foreign jurisdiction, that our own courts cannot compel a settlement of the account of such assets, and payment *of the balance due, although both the executor and tlie assets are brought within our jurisdiction?

Let us look into this question, first upon the ground of reason and convenience, and then upon authority.

Eirst, as to the reason of the thing. The argument against our jurisdiction is, that the foreign assets received under a foreign administration, must be administered according to the foreign law: that the executor is bound so to administer them; and if he is held accountable here as well as there, there may be a conflict between the two jurisdictions which would be mischievous to him. The premises do not justify the conclusion. Grant that the foreign assets, though brought here, are to be administered according to foreign law; this does not prove that our courts cannot take cognizance of the case. It only proves that in deciding it, we must be governed by the law of the country where administration was granted. That we must be so governed, I have no question. Where the sovereignty having jurisdiction over person and property has exercised its powers and committed the goods of a decedent to the executor, and bound him to account for them according to its laws, every other sovereignty is, under the sacred obligations of justice, to respect that lawiful exercise of authority. It is not true, in this sense, that “a grant of administration in a foreign court is not taken notice of in our courts of justice.” Toll. Law Ex’ors 108. That doctrine is to be understood, as merely affirming that our courts admit not the authority of a foreign administrator to recover the assets within our own jurisdiction. They must respect the grant of administration in a foreign state, in so far as relates to the assets within its power. This is the effect of the case of Jauncey v. Sealey, 1 Vern. 397. There an english administrator filed a bill for discovery of assets against a neapolitan administrator ; there were no assets in England; the foreign administrator ^'pleaded in bar of the discovery, that there was no estate but at Naples, and the plea was allowed: the court thus recognizing the foreign grant of administration as it respected the foreign assets.

But though it be admitted, that the courts of this country must respect the grant of administration abroad, so far as to govern themselves by the law of the foreign jurisdiction in the administration of the assets, the question remains, whether they can take cognizance of the case? It is objected, that it may be difficult to ascertain the law of the foreign state. How, it is asked, (2 Mass. Rep. 387,) shall we ascertain the laws of Indostan in relation to administrations, when one has died and left assets there? I answer, precisely as you would ascertain it if a contract were made there. Thus, the laws of China have been ascertained in english courts, in relation to the rate of interest. And nothing is more common than the obligation of looking into the laws of other countries, for the purpose of settling controversies arising on contracts made there, or titles to real estate within their sovereignty. Thus, in the case of Long v. Colston, Gilm. 98, the law of England as to the mode of transferring the rights of a feme covert in an english estate, came directly in question ; and so, in numerous other cases, foreign laws respecting trade have become the subjects of inquiry and adjudication in our courts. Livingston v. Maryland Ins. Co., 6 Cranch 274; Church v. Hubbart, 2 Cranch 236. It is unnecessary to multiply authorities upon this point. Admit the right to sue, and there can be no question of the power and the duty of our courts,'in a suit against a foreign executor, who has administered abroad and comes into this country, to inquire into and to respect the law of the foreign country in relation to the administration of the foreign assets. Whatever of difficulty or inconvenience ma3r be fancied to exist in the execution of this duty, it weighs *little in the balance, in comparison with the burden which would be imposed upon creditors and distributees, by refusing cognizance of their cases here, though the person and-the property are both in our power, and sending them to sue in a foreign country from which the executor has absconded, with the whole of the assets in his pocket. How shall they sue him there, when he is not within the jurisdiction? How shall they reach the assets there, when he has eloigned them? Will it be said his sureties may be sued? Admit it, if he has any: when they discharge the demand, and become creditors, where shall they sue? Upon the principles assum'ed, they could not sue him here, and thus would be utterly without remedy. To such consequences are we led by the unnecessary adoption of the principle, that an absconding executor who has eloigned or wasted his testator’s estate, can only be sued in the jurisdiction where he proved the will. If this be so, an executor who takes probat in the district of Columbia, has only to reduce the assets into money and remove with them into Virginia or Maryland, and he is safe from all further pursuit. I cannot think so. If he comes here from a foreign jurisdiction, bringing with him the assets, or having wasted them, he ought, upon every principle of justice and convenience, to be made amenable to our jurisdiction, and compelled to account with creditors, legatees and distributees, for' the foreign assets which he holds or has converted.

It is said, indeed, that peradventure there might be a conflict between the decisions of the foreign court and ours, and that between the two the executor might suffer. I think not. While this court would be bound in its decision to conform to the law of the forum which granted administration, the foreign court, on its part, would consider the party protected for what he is compelled to do by us. No court, it must be .presumed, *could ever charge an executor with a devastavit, because he has paid a debt decreed in in-vitum by a foreign tribunal, although the domestic forum may consider the decree erroneous. This appears to be admitted in the case of Davis v. Estey, 8 Pick, R. 475, cited far the appellee, and is abundantly supported by the most respectable authorities. Thus, in a contest between an attaching creditor abroad and the assignees of a bankrupt in England (whose rights, according to the english doctrine, cover all his property wherever found) it is declared, that if the former has obtained a judgment, however incorrectly upon principle, that judgment shall protect him. Story’s Conf. of Laws 34S. And to this effect is the elaborate opinion of lord Loughborough in Sill v. Worswick, 1 H. Blacks. 693. But if the creditor, who recovers effects to which the assignees are entitled, will" be protected, a fortiori will the protection be extended to him, who has been compelled to pay to that creditor the funds to which another has a better title. Accordingly, we find the principle distinctly laid down by chancellor Kent in Holmes v. Remsen, 4 Johns. Ch. Rep. 460, 467, 468. In that case, a debt had been paid in England to the assignees of Mul-lett, a bankrupt, under a judgment of the lord mayor’s court of London; previous thereto, trustees for the creditors of Mul-lett had been appointed under the laws of New York, who thereby became entitled to his whole estate; and they brought suit in New York against the executors of M'ul-lett’s debtor, who had paid the debt in London. “The question now is,” said chancellor Kent, “whether the recovery of the debt is not a conclusive bar to the claim set up by the bill? In my opinion, the question cannot admit of a moment’s doubt” — -“If money be duly attached in the hands of a party, and he has paid it pursuant to the judgment of a competent foreign court, I am to presume omnia rite acta: and it may be laid down as a clear principle of justice, that *a person compelled by a competent jurisdiction to pay a debt once, shall- not be compelled to pay it over again” — “Which of the parties would have the better title to the debt, if it were still unpaid, may be one question : but, certainly, when the title of the assignees and the trustees is equally valid under the laws of their respective countries, the debt is well paid to the party that uses the best diligence and first recovers it.” It would seem, then, that there would be no danger to the executor, even if our tribunals did not admit that the assets under a foreign administration must be administered according to the law of that forum by which administration was granted. But when we on our part defer to english law,, and the english courts defer to our judgments, it is impossible he should suffer.

Upon the whole, then, it appears, that in subjecting the executor to suit who has brought the assets into this jurisdiction, no mischief will arise; while the contrary doctrine will protect an executor (who quits the country where he administered and comes over to this country with the assets) from all claim whatsoever. If he cannot be sued here, he can be sued nowhere; since the foreign court can have no longer power over him when his person and his effects are both beyond its reach. The reason of the thing, then, is clearly with the right to sue.

Iiow' is it on authority? It is admitted, without qualification, that a foreign administrator has no right to sue. And it seems to be supposed, that the exemption from liability to suit is the correlative of this proposition. By no means. Our courts do not, indeed, recognize the right of the foreign administrator to withdraw the assets from this jurisdiction. It is clear, that as a matter of right, the power of a foreign jurisdiction does not extend over the assets which are beyond it, and that, of course, a grant of administration by it, cannot give a right or title to the administrator over assets beyond *the territory of the government which grants it. Moreover, as matter of policy and of duty to our own citizens, the withdrawal of the assets should not be permitted, to the prejudice of creditors in our own country; who might thereby be compelled to seek their remedy in the domicil of the foreign executor, and there perhaps meet with obstructions and inequalities in the enforcement of their rights from the peculiarities of the local laws: Story’s Cotif. of Laws, p. 421, 422. But these considerations have no bearing against the suability of the executor. So far from it, they would demand, that the foreign executor who comes here with the assets should be held liable to the action of creditors for their debts, or of legatees for what is due them. If it is the duty of every sovereignty to provide for the security of its own people, it is as much bound to enforce justice in their behalf from an executor who is within its jurisdiction, and has also within it the assets out of which they have a right to payment, as it is to prevent a foreign administrator from recovering and withdrawing the assets which are within its power. It is obvious, therefore, that so far from the power to sue and the liability to be sued being correlative, they are rather antagonizing; as the same reasons which forbid the first, very strongly sustain the last. Hence, it becomes unnecessary to examine any of the adjudications, except those which are supposed to deny the sua-bility oí a foreign executor. Of these there is not one, I conceive, which establishes the proposition.

In his treatise on the conflict of laws, after laying down (in page 422,) in the strongest terms that ‘ ‘no suit can be brought by or against any foreign executor or administrator in the courts of this country in virtue of his foreign letters testamentary or of administration,” justice Story, in a subsequent passage (page 431,) states, less broadly, that “there are authorities which indicate, that a foreign executor is not liable to be sued here as *such.” Let us then see what are these authorities which are referred to by this learned jurist, whose research leaves no room to doubt, that he has collected all the cases which bear upon the question.

The first of the cases referred to is that of Selectmen of Boston v. Boylston, 2 Mass. R. 384, which certainly establishes no such proposition as is contended for. To say nothing of the fact that it was the case of an administrator, whose sole power is derived from the court of probat, instead of that of an executor, whose powers are derived from the will, it is sufficient to observe, that the case was expressly decided upon a particular statute of Massachusetts, which provides for the grant of administration (in the case of a will that has been proved in a foreign state) “of the testator’s estate lying in that state, and for the settlement of the said estate.” Now, the proceeding there was not a suit against the administrator, either at law or in equity, but a citation, calling upon him to settle his accounts; and the court decided, that as a court of probat under that statute (whose powers are more limited than those of a court of chancery, 1 Mason 420,) it had authority only to settle the account of the estate lying within that commonwealth. Thi-s was as obviously right as it was clearly no decision of the question before us. It by no means proves, that the plaintiff’s demand (which, as in our case, was for a legacy, in relation to which the laws of the two countries are in unison) could not have been enforced in a court of equity, or that a creditor by specialty could not have sued and recovered at law, unless the defendant could have shewn a full administration, or debts of superior dignity according to the english law.

The next case referred to by judge Story, is that of Goodwin v. Jones, 3 Mass. R. 514, but as the question there was as to the power of an administrator to sue, *and not as to his suability, it cannot bear upon the question here.

The next case is Davis v. Estey, 8 Pick. R. 475. That case was debt on a note, against an administrator who first qualified in Vermont, where the assets were more than exhausted by Vermont creditors. He afterwards qualified in Massachusetts, and W'as sued there. The Massachusetts assets were sufficient to pay the plaintiff; but he only claimed to be entitled to a pro rata dividend out of the whole property in both states; and so the court decided. I am at a loss to perceive what influence this case can have upon the question before us; for it is plain, that as the foreign assets were insolvent, no question could arise as to the power to reach them; and as to the administrator, there could be no question as to his suability in respect of the Massachusetts assets, he having qualified in that state as well as in Vermont.

The case of Dawes v. Head, 3 Pick. R. 128, 143, was determined, avowedly, without touching the questions in relation to the administration of foreign assets, which are pronounced to be of a novel and delicate nature. The case however is very much like that of Davis v. Estey, and is liable to the same remarks.

Lastly, in Doolittle v. Lewis, 7 Johns. Ch. Rep. 45, 47, though chancellor Kent states, broadly, that a foreign executor cannot sue or defend, yet the remark was alogether extrajudicial; and the same may very' truly' be said of the case of Morrell v. Dickey, 1 Johns. Ch. Rep. 153, to which the learned judge refers. It is observable too, that in this last 'cáse there is no intimation that á foreign executor cannot be sued.

Besides the foregoing cases, which are all that are cited by judge Story in the passage last referred to, there are a few others which it may be proper to notice. Thus, in-the case of Richards v. Dutch, 8 Mass. R. 506, it was decided, that “legatees, who claim only from the bounty of the testator', must resort to the! country of *the testator, where the will was proved originally, and by the laws of which his'effects are to be distributed, to obtain the bounty they claim;” and the same doctrine seems to have prevailed in Dawes v. Boylston, 9 Mass. R. 337. These decisions appears to me unreasonable and extravagant, and they are rejected by judge Story himself in the case of Harvey v. Richards, 1 Mason 381, 420, 421. They are opposed, too, by the decisions in other states (Guier v. O’Daniel, 1 Binn. 349, in-note) and by the english cases collected by the court in Harvey v. Richards. It wóuld be unreasonable, indeed, that a legatee should be compelled to go aboard to get payment out of assets that are here, in the hands of an administrator who has duly qualified in our courts, and is within our jurisdiction.

In Jauncey v. Sealey, 1 Vern. 397, the plaintiff as administrator of J. S. who died at Naples, brought his bill for a discovery of the intestate’s personal estate, against the executor who qualified in Naples, but was then in England. There were no assets except assets in Naples, and it does not appear that they were brought over to England. The plea of these matters was held a bar to the discovery. Scrimshire v. Scrimshire, 2 Hagg. 420, (as cited, Conf. of. Daws 432,) is tp the same effect. Those cases, I presume,'were rightly decided: 1. Because the plaintiff claiming the discovery, was neither creditor nor. legatee nor distrib-utee. He was the home administrator, seeking an account of assets in another country, from the foreign administrator then in England. What right had he to demand those assets, wffich had been lawfully committed to the foreign administrator by the jurisdiction within whose power the assets had been, and still continued? .That administrator, according to my view of the subject, might have been liable to the action of creditors and legatees, since as administrator he was bound to pay the debts and legacies all over the world, but he was *in no wise bound to pass over the foreign assets to another representative of the estate, for the purpose of being administered by him. 1 Mason 423. 2dly. Because the assets were neapoli-tan assets, and were still within the power of that forum which had granted the administration. To have decreed that the foreign executor, then in England, should deliver over to an english administrator the goods w'hich were, in Naples, would have been to require what might have been impossible, and was contrary to his duty; and if the delivery could not be decreed, the plaintiff could derive no benefit from, nor have any title to, a discovery.

The last case I shall advert to, is Newby’s adm’r v. Moore’s ex’ors, 1 Dowl. & Ry. 35, 16 Eng. C. L. R. 15. The testator’s widow, who administered in India, remitted the effects to an agent in England. A creditor administered in England, .and as administrator brought assumpsit against the agent of the administratrix, for the money in his hands. The court held, that the foreign administratrix was entitled to all the assets which the testator left in India, and that the english administrator could not recover them from the agent. This case, then, concurs with the preceding, and the remarks already made as to them, fully apply to it.

Upon a full review of the whole subject, I am of opinion, that justice, convenience and necessity require a .recognition of the right to sue an executor who has qualified abroad, if he comes within this jurisdiction bringing the assets with him; and no authority sustains the contrary proposition. Whether he would be liable to suit here, if the assets still remained abroad, it is not necessary in this case to determine.

I have occupied so much time on this novel and important topic, that I must content myself with a very succinct notice of some others. The next point of importance refers to the dignity of this debt. And here it is to be observed, that this inquiry depends upon ^Virginia statutes, not upon english law. Benjamin Pollard the elder was indebted to the estate of Camm Garlick, and upon his death Benjamin Pollard the younger administered on his estate, and became liable to pay his debts according to the dignity prescribed by the Virginia law. If then, by our law, the debt due from the estate of Pollard the executor to. the estate of Camm Garlick his testator, was a debt entitled to preference, it can be of no importance whether it would be so regarded by english law or not.

By the act of 1705, ch. 33, 2 13, it is very clear, that the debt of an executor to his testator’s estate is of the first dignitjq though he has never qualified. We do not consider that act as repealed by any subsequent act, until it was repealed by the provision of the act of March 1819 “providing for the republication of the laws,” 1 Rev. Code, ch. 1, § 9, p. 16. We all consider the acts of 1748, ch. 4, $ 13, of 1785, ch. 61, 50, and the revised act of 1792, as cumulative; and “instead of designing to narrow the provision which gave preference to the payment of these demands against fiduciaries, they were intended .to extend it, and to embrace cases not within the act of 1705; such as the cases of committees of lunatics, sheriffs committees of intestates’ estates, and the curators of the property of deceased persons &c. With this view of the matter, we are of opinion, that this was a debt of the highest dignity.

But we think the payment of the two judgments of Kearnes and Coker by Pollard the administrator, were payments in his own wrong. • There is no doubt that those judgments, which were of very ancient date, were fully within the operation of the statute 1 Rev. Code, ch. 128, § 17, by which not only was all remedy upon them against the administrator barred by the lapse of five years from his qualification without any proceedings had upon them, but it is provided that they *“ shall be deemed” (that is, taken, held, considered) 1!to have been paid and discharged. ’’ This provision is much stronger than any clause of the english statute of limitations, and seems to me to make it the duty of executors to plead the statute. It has, indeed, been repeatedly observed in England, that an executor is not bound to plead the statute there. But this doctrine seems of late to have been seriously and very properly shaken, at least in the extent to which it had been carried. Thus, in M’Culloch v. Dawes, 9 Dowl. & Ryl. 40, 22 Eng. C. E. R. 385, where the testator had incurred a debt in 1796 and died in 1804, and suit was brought in 1826, Bay ley, J., 'observed, that “executors are bound, if possible, to resist such a claim: they have no right to waive any legal defence to such an action; and if they did, and were to pay a debt against the recovery of which there was any legal bar, they would render themselves liable over to those who were interested in the testator’s property.” This, though an obiter dictum, is the dictum of a most distinguished judge, and is entitled to the more consideration, as all the opinions on the other side are founded on an incidental remark of lord Hardwicke in Norton v. Frecker, 1 Atk. 526. In a late case, too, in equity, it has been decided by lord Brougham, thaf when a suit in equity is brought convening the executor and all the creditors of the estate for the purpose of distribution and administration of the assets, in the master’s office, any party interested, whether creditor, executor or volunteer, may insist upon the objection. Shewn v. Vanderhorst, 1 Russ. & Myl. 347; 4 Cond. Eng. Ch. R. 458. In New York too, it has been decided that an executor cannot be allowed in his accounts a charge for retaining a debt barred by the statute at the testator’s death, on the ground that it is no longer a debt. Rogers v. Rogers, 3 Wend. 503. Matthews on Ex’ors 137, lays down the doctrine also as it was decided by lord Brougham, though he quotes *Burke v. Jones, 2 Ves. & Beam. 275. These cases shew, that it is by no means a settled rule elsewhere, that an executor may of his own will, and against the interest or express direction of the parties interested, saddle the estate with a debt which he might successfully have resisted. Still less can such a principle prevail in relation to cases within the 17th section of our statute of limitations, which declares that every judgment against a testator, upon which no proceedings shall have been had within five years from the executor’s qualification, shall be “deemed to have been paid and discharged.” Under this, clause, I incline to think.an executor is always bound to make this defence, unless it be waived by those who are interested : but be that as it may, I am satisfied, that there may be cases in which it.would be his duty; and in the case under consideration I do not think he had a right, while the plaintiffs were in full pursuit of their demands, to take away from them the advantage they had acquired. The debts which had precedence of theirs were now barred by the statute, and “deemed to have been paid and discharged;” and it was a vidlation of their rights, to give new life and vigour and precedence to demands, which, but for the collusion of the administrator, could no longer be a barrier to their recovery. For I presume, that to the plea of debts of superior dignity, the creditor plaintiff may well reply that those debts are barred by the statute and deemed to be satisfied and paid.

In this view of the case, it is unnecessary to inquire into the alleged fraud and collusion in the payment of these judgments, the circumstances of which, to say the least, are very suspicious. Nor is it necessary to examine the other questions in the cause. It remains but to observe, that in reversing the decree, the cause must go back for further proceedings, since it does not appear whether any and what payments have been *made by the representatives of John and Samuel Garlick. This inquiry must be made in the court below.

CABELE and BROOKE, J.,

concurred.

It was understood that PARKER, J., dissented, but his ill state of health prevented him from giving the reasons of his opinion.

The decree entered in the court of appeals was as follows:

“The court is of opinion that Benjamin Pollard the executor of Camm Garlick deceased and who qualified as such in the prerogative court in England, was prope'rly amenable to the process of the courts of this commonwealth, at the suit of those interested in the estate, he having removed hither with the foreign assets, which, as it appears, he afterwards wasted and eloigned. And the court is further of opinion that the payments made by Benjamin Pollard administrator of Benjamin Pollard deceased, executor as aforesaid, of the two judgments of Kearnes and Coker, were improperly allowed to the said administrator in the settlement of the administration account, as against the plaintiffs’ claim : that the debt of Camm Garlick’s executor, Benjamin Pollard, to the estate of the said Garlick, was a debt of superior dignity to the said judgments; but that if it were not so originally, it ought not now to yield to them, as they were barred by lapse of time, and by the provisions of the statute are presumed to have been paid and satisfied : that they ought therefore to have been resisted by the administrator, and might have been successfully resisted by relying on the seventeenth section of the statute of limitations : that the plaintiffs, as creditors, had a right to insist on the objection of the statute against those judgments (15 Ves. 498,) and that the administrator was bound to make it under the circumstances of this case, instead of making payment to the prejudice of ^creditors whose demand was in a full course of prosecution and was not liable to the objection of the statute. The court is therefore of opinion that the decree of the said circuit superior court is erroneous in dismissing the bill of the appellants. Therefore”

Decree reversed with costs, and cause remanded to the circuit court, to be finally proceeded in pursuant to the principles of the foregoing1 opinion and decree.

It was alleged by the administrator Pollard, in his answer, that his intestate toot the benefit of the laws for the relief of insolvent debtors, and was discharged from custody, at the suit of Coker, in 1804; but no evidence of such proceeding was exhibited, and the fact nowise appeared by the record, that he was discharged as an insolvent. If evidence of such a proceeding had been adduced, it would have been a question of very different consideration, whether the 17th section of the statute of limitations would have been a bar to the action of Coker against the administrator of Pollard, upon his judgment against the intestate in his lifetime ? But the point was not considered by the court, or made at the bar, probably because it was thought that it was not presented by the record. If the intestate Pollard took the benefit of the laws of Virginia for the relief of insolvents, in a state court, and was discharged from custody at the suit of Coker, the laws of Virginia vested all the estate of the insolvent debtor, for such interest as he had therein and might lawfully depart withal, in the sheriff for the benefit of the creditor at whose suit he was in custody ; and the creditor might, at any time afterwards, have sued out a scire facias to have execution against any estate the insolvent debtor thereafter acquired or was possessed of. 1 Rev. Code of 1792, ch. 151, § 39-42, Pleas, edi. p. 303; 1 Rev. Code of 1819, ch. 134, § 31, 2, 3, 4, 5, p. 536-8. If he took the benefit of the laws of the U. States for the relief of insolvents, in a federal court (and if there was any such proceeding, it probably occurred there), the act of congress of January 6, 1800, 3 Bior. 301, provides, that any person imprisoned on process of execution, issuing from apy court of the U. States, in civil actions, may take the oath of insolvency thereby prescribed; and, thereupon, “the debtor shall be discharged from his imprison, ment on such judgment, and shall not be-liable to be imprisoned again for the said debt, but the judgment shall remain good and sufficient in law, and may be satisfied out of any estate which may then, or at any time afterwards, belong to the debtor.” — Note in Original Edition.  