At a subsequent period of 1836, the Bank of the United States, in behalf of the said bank, and of the United States, and of such of the creditors of the estate of David Peter as should come into court and contribute to the expenses of the suit, filed a bill against George Peter, surviving executor, against the heirs or devisees of David Peter, and against John Marbury, trustee as aforesaid, stating that the personal estate of the said testator had been applied to the use and benefit of the heirs by the executors, in the fulfillment of the trust created by the will, and claiming that the real estate of the said testator, or the proceeds thereof, or as much as might be necessary, should be applied to pay whatever balance might remain due to the creditors, after selling and applying to that purpose the proceeds of the city lots and the land upon which Dulin lived. It prayed, also, an injunction against Marbury, and for other and general relief.

136*] In April, 1836, the following agree ment was made between the counsel of the respective parties, and filed in the cause:

AGREEMENT OF COUNSEL.

It is agreed by the parties in this cause, by their counsel, that the Bank of the United States and George Peter, who claim to be creditors of the estate of the late David Peter, for a balance of debt which may remain to them after the application of the trust estate provided in the will of the late David Peter for the payment of his debts, shall, if such balance be established against the defendants, the heirs and devisees of David Peter, as to so much of David Peter's real estate as is conveyed to John Marbury, by deed filed as an exhibit with complainant's bill, look to the proceeds of sales of said real estate so conveyed to the said John Marbury, in lieu and stead of the said real estate itself.

It is further agreed, that as soon as the purchase money of said real estate shall become payable and be collected by said John Marbury,

vost v. Gratz, 6 Wheat., 481; and note to Pratt v. Carroll, 8 Cranch, 471.

Res. adjudicata or conclusiveness of judgments. Wherever a tribunal has decided upon a matter within its regular jurisdiction, its decision must be presumed proper, and is binding until reversed by a superior tribunal. It cannot be affected, nor can the rights of persons dependent upon it be impaired, by any collateral proceeding. Locke v. Halsey, 16 Pet., 71; Warburton v. Aken, 1 McLean, 460; French v. Lafayette Ins. Co., 5 McLean, 461; Farmer's Loan & Trust Co. of New York v. McKinney, 6 McLean, 1; Campbell v. Strong, Hempst., 265.

Where a cause has been tried on the merits, and judgment has passed thereupon for either party, such judgment, while it remains in force, must be a bar to any other suit for the same cause of action, though the declaration be so imperfectly drawn that it would not stand the test of a demurrer. Hughes v. Blake, 1 Mass., 515; 6 Wheat., 453.

It is equally and universally true of all actions, whatsoever their subject matter, that an allegation on record, on which issue has once been taken and found, is, between the parties taking it and their privies, conclusive, according to the finding thereof 80 as to estop the parties respectively from again litigating that fact once tried and found. Sturdey V. Jackaway, 4 Wall., 174.

The rule applies equally to a verdict and judgment in a court of common law, and a decree of a court of equity. They both stand on the same footIng. Hopkins v. Lee, 6 Wheat., 109.

If a judgment is set up in a collateral action, against a party who had not opportunity to plead to the action in which it was recovered, because no

he shall invest the same in his own name, as trustee in Pennsylvania State stock, bearing interest at the rate of 5 per cent., first deducting therefrom the necessary expenses, taxes due ɔn the said property, to the day of sale, and the commissioners provided for in the said deed; the whole of the proceeds of the said sales, after such deductions made, to be subject to the order and decree of this court in this cause for the disposal thereof, whether the said order or decree be for the payment of debts due from the said estate of David Peter to the Bank of the United Statse, or to George Peter, or other person, or from the said heirs and devisees, or either of them, to the said Bank of the United States, or George Peter, or either of them, on account of any portion of the personal estate of said David Peter, used or retained by them seyerally; provided, also, that it is the true intent and meaning of this agreement, that the part, portion, or interest of each of said heirs and devisees, should be responsible only for so much of the claims and debts of said heirs and devisees, to said Bank of the United States, or George Peter, as he or she shall be personally responsible for; and that no one shall be held or deemed responsible for any other than him or herself.

It is further agreed, that the Bank of the United States, or George Peter, or either of them, by themselves or their agent, may stop or postpone the sale of any por- 1*137 tion, or the whole, of the property advertised for the 15th inst., or any future attempted sale of property so conveyed to said John Marbury, if they, or either of them should be dissatisfied with the prices bid or offered for said property or any portion thereof; provided, however, that all the said property shall be sold during the present year, unless the said bank and George Peter consent to further delay.

It is further agreed, that the three story brick house and lots appurtenant in Washington city, set forth in said deed to John Marbury, as devised in trust for William H. Peter, shall be

notice was given to him of its pendency, it may be avoided by proof of fraud, or it may be shown to be void on its face. Webster v. Reid, 11 How., 437; Pratt v. Northam, 5 Mason, 95.

That the validity of a judgment may be inquired into collaterally, when a want of jurisdiction appears upon the record. Harris v. Hardeman, 14 How., 334; Shumway v. Stillman, 6 Wend., 447; Bradway v. Heath, 13 Wend., 407.

The judgments and decrees of the courts of the United States are binding until reversed, although their jurisdiction is not shown on the record. Although courts of limited jurisdiction, they are not technically inferior courts. McCormick V. Sullivant, 10 Wheat., 192; Kennedy v. Georgia State B'k, 8 How., 586.

The judgment of a court of one of the United States must receive, in the courts of every other State, the same faith and credit which is awarded it in the State wherein it was rendered. Warren M'f'g Co. V. Etna Insurance Co., 2 Paine, 501; Green v. Sarmiento, 1 Pet. C. C., 74; 3 Wash. C. C., 17; Jacquette v. Hugunon, 2 McLean, 129; Lincoln v. Tower, 2 McLean, 473.

A judgment or decree of a court of competent jurisdiction, directly upon the point, is conclusive between the same parties or their privies, upon the same matter coming directly in question in another court of concurrent jurisdiction Blount v. Darrach, 4 Wash. C. C., 659; Gelston v. Hoyt, 1 Johns. Ch., 543; Simpson v. Hart, 1 Johns. Ch., 91; Brinkerhoff v. Marvin, 5 Johns. Ch.. 325; Hawley v. Mancius, 7 Johns. Ch., 174; Van Wyck v. Seward, 1 Edwards, 327; Ingham v. Bellows, 2 Vt., 575; Kingsland v. Spalding, 2 Barb. Ch. R., 341; Monroe v.

Bold jointly by the said John Marbury and the said George Peter, Sen., executor of David Peter, and upon the terms mentioned in the deed to said John Marbury; and that the proceeds of the sale of the said house and lots appurtenant, after deducting expenses and taxes, shall, when the same becomes due and is collected, be invested by the said John Marbury and George Peter, in their joint names as trustees, in five per cent. stock of the State of Pennsylvania, to abide the order of this court for the disposal of the same. The said John Marbury to charge no commission on the proceeds of said sale, if the court shall be of opinion that the said house and lots appurtenant be part of the real estate of David Peter; and the said George Peter to have no commission on the proceeds thereof, if the court be of opinion that the same is the property of the estate of William H. Peter, deceased.

It is understood and agreed, that nothing herein contained is to be taken to amount to an admission by the defendants, the said heirs and devisees, or either of them, that any debt is due from them, or either of them, to the said complainants or the said George Peter; or to prevent them, or either of them, from having the benefit of the statute of limitation, by plea or answer, or any other defense, legal or equitable, against the enforcement of the claims of the complainants, or George Peter, except that the said defendants, the said heirs and devisees, do hereby waive any exception to the jurisdiction of the court, as to the personal estate in this agreement mentioned.

F. S. Key, for United States Bank.
Jas. Dunlop, Solicitor and Trustee for Geo.
Peter.

John Marbury, Sol'r for heirs, and devisees, and himself.

April 12th, 1836.

under it; and the devisees, Beverly and others, pleaded the lapse of time and the statute of limitations as a full and complete bar against the claim of the complainants. They also denied all knowledge of an arrangement with the Bank of Columbia; required proof of it; denied the authority of the executors to cast any further burden upon the real estate, than such as would result from a deficiency in the personal estate; denied that the executors applied to the bank for indulgence; averred that the negligence of the executors alone prevented the recovery of the purchase money of the farm from Magruder; averred that the children of David Peter were minors at the time of his death, and incapable of consenting to any arrangement whatever with the banks; that Beverly had no knowledge of, or interest in, the property until 1819, when his marriage took place; that they were never able to acquire any information, and never did, of the complicated affairs of the estate; praying that the decree of the court, dismissing a similar bill in 1827, may be as effectual as if formally pleaded; averring that any agreement with the banks could affect nothing more than the trust part of the real estate; they deny the authority of the court to decree a sale of property situated in Maryland; aver that the executors received large sums of money for which they have rendered no account; that no part of the personal estate came into the possession of Beverly since his marriage; that if any part of it came into the possession of his wife before her marriage, it was very inconsiderable indeed; and that the personal estate continued principally in the possession of George Peter, the executor, by whom it was used, wasted, and otherwise disposed of.

On motion of the complainants, by their solicitor, the Circuit Court ordered "That the decree of the Supreme Court, and the bill, an

Douglass, 4 Sandf. Ch. R., 126; Steele v. Lineberger, 59 Penn. St., 308, 313; Manigault v. Deas, 1 Bail. Eq., 283.

But a decision of a court of law, on motion and affidavit, is not such a res judicata as will conclude another court from inquiring into the case. den v. Patterson, 5 Johns. Ch. R., 52: Simpson v. Hart, 14 Johns., 63.

case of Beverly v. Peter in the said record, and on file in the said cause, be read and made use of in the hearing of this cause."

How far a judgment at law is a bar to a subsequent suit at law, or in equity, against the party in whose favor such judgment was rendered. Saunders v. Marshall, 4 Hen. & Munf., 455.

A person not a party to a judgment, is not bound by it, in law or equity, merely on the ground that be was present, and cross-examined the witnesses. Turpin v. Thomas, 2 Hen. & Munf., 139.

Parties and privies to a decree or judgment are bound thereby, and cannot re-discuss the same matter in another suit. Allin v. Hall, 4 A. K. Marsh., 526; McChord v. McClintock, 5 Litt., 304; Garner v. Strode, 5 Litt., 314; Riley v. Miami Export Co., 5 Hammond, 333; Rogers v. Coleman, Hard., 413.

In a suit by a purchaser under an execution, the original judgment cannot be controverted. Starr v. Starr, i Hammond, 326.

In chancery, a judgment recovered in a court of law is considered as binding upon the real parties in the suit, although not the nominal parties on the record. Southgate v. Montgomery, 1 Paige, 41.

The executor or administrator is bound by a jadgment in favor of, or against, the decedent, or his predecessor in administration. Steele v. Lineberger, 59 Penn. St., 309, 313; Manigault v. Deas, 1 Bail. Eq.. 282, 295.

A judgment or verdict against the executor or administrator is not even competent evidence against the heir or devisee of the debt, or other facts established thereby. A judgment for or against the heir does not bind the devisees, nor conversely. Kent v. Kent, 62 N. Y., 560, and cases cited; Robertson v. Wright, 17 Gratt., 534; Laidley v. Kline, 8 West Va., 218, 230. Contra, Harvey v. Wilde, L. R., 14 Eq., 438; S. C., 3 Moak's Eng., 811; Compare Early v. Garland, 13 Gratt., 1; Garnett v. Macon, 6 Call, 308, 337; Cowart v. Williams, 34 Ga. 167.

A judgment or verdict against one individual does not estop him as trustee. Rathbone v. Hooney, 58 N. Y., 463.

But an adjudication against him as trustee estops him in respect to his private right as a cestui que trust held at the time of the former action, or acquired from persons then holding it. Corcoran v. Chesapeake, &c., Canal Co., 94 U. S., 4 Otto, 741, 745

The undersigned auditor of the Chancery Court for Washington County, District of Columbia, has had the papers filed in this cause under examination, and now submits the following report:

That the claim of the Bank of the United States against the estate of David Peter, with interest to the 12th day of November, 1840, and costs, is $46,119.75; and that the claim of George Peter, per statement herewith, is $26,607.78. That the net proceeds of the sales of property sold by George Peter, as executor, is $17,513.66, to which may be added the estimated value of two thousand acres of land in Montgomery County, Maryland, called Dulin's (which originally sold for a little upwards of $20,000), $7,500; of vacant lots in the city of Washington, $1,500, and $2,873.15 being the amount awarded to the proprietor of Dulin's farm by the Chesapeake and Ohio Canal Company, for damages done by running said canal through that farm, which sum has never been paid by the executor of David Peter. These several

items, if the property brings this estimated value, will make the sum of $29,386.81 for

trust estate.

That the sales made by John Marbury, under an agreement made by the parties to this cause, as per report of sales, amount to $41,731.86, but owing to the non-compliance with the terms of sale, of some of the purchasers, the corrected sales as specified in Mr. Marbury's account No. 2, the amount is reduced to $38,722.32; the whole amount of the payments received by Mr. Marbury up to the 20th April, 1838, is $21,711.16, from which deduct, for expenses, taxes, surveying, auctioneer's bills, and the trustee's commission, $1,804.76, leaving in the hands of the trustee, $19,906.40, which amount, according to his report, has been vested in the stock of the State of Pennsylvania, bearing interest at 5 per cent. per annum. The corrected sales, as above, amount to $38,722.32, to which may be added as follows: Wm. Ramsay's purchase of lots, $2,084, and Wm. Stewart's $501, which still remain for the trustee to dispose of, and if they bring the same at which they were struck off at to Ramsay and Stewart, will make, when added 140*] to the $38,722.32, the sum of $41,307.32 as gross sales; in addition to this sum, there remains twenty-four acres of land, near the city of Washington, bought at the sale by Mr. Upton, who never complied with the terms of sale, and never has paid for, which it is believed will sell for $1,000; this will make the trustee's sales amount to $42,307.32, and taking the expenses, commissions, &c., as before mentioned, it will leave in the hands of the trustee

That it thus appeara

that the sales of George Peter, acting under the will of David Peter, amount, if the sales shall be equal to the estimate here given, will be $29,386.81, and those by Mr. Marbury, $40,502.56. To these sums are to be added the amount of interest received on the notes given in payment, and the interest on the Pennsylvania stock.

The auditor has read and considered the pleas of limitation put forth by the answers of the heirs of David Peter, and by John Marbury, Esquire, as their solicitor in this cause, and is of opinion that it is not available, under the circumstances of this case, as it respects either of the creditors. Submitted by

Joseph Forrest, Auditor.

10th November, 1840.

In the audit of the 10th December, 1833, the executors are charged with the following, being for property sold in the city of Washing ton to sundry persons, viz.: Shaw and Elliot, lots, $1,000; J. Kuhn, $796.86, and Francis Dodge, $175, making in the whole $1,971.86. It is contended by George Peter, the surviving executor, that he never received this amount, or any part thereof, but that the same was received by the heirs; as Major Peter gave deeds to the purchasers, the auditor is of opinion that it was rightfully charged in said audit. This amount the executor can bring into his settlement with the heirs, but not into a settlement with the creditors of the estate.

Joseph Forrest, Auditor.

10th December, 1840. itor aforesaid, filed the following exceptions to Whereupon the complainants, by their solic the auditor's report:

COMPLAINANTS' EXCEPTIONS.

Because the auditor has charged George Peter, surviving executor, with the purchase money of the lots sold to Kuhn and *Birth, [*141 when it was proved that the same was not received by him, but by James B. Beverly, or was applied by him to the payment of debts of the deceased, for which the executor is not credited. F. S. Key, for complainant.

Whereupon the said defendants, by their solicitor aforesaid, filed the following exceptions to the auditor's said report, to wit: DEFENDANTS' BILL OF EXCEPTIONS TO AUDITOR'S REPORT.

Exceptions on the part of the heirs-at-law and devisees of David Peter, defendants in the above cause, to the report of Joseph Forrest, Esq., auditor, made in this cause, and filed the day of November, in the year 1840. The said de fendants except to the said report

1. Because the auditor has allowed a claim or debt of $46,119.25, in favor of the complainants, the Bank of the United States, against the estate of the said David Peter and the defendants, his heirs and devisees, without legal, competent, and proper evidence of the existence of such debt, or of any debt whatsoever, due from the said David Peter, in his lifetime, and with the payment of which these defendants ought to be charged in this suit.

2. Because, in stating the said pretended debt

er account, between the complainants and the | said defendants, the heirs and devisees of the said David Peter, the auditor has allowed compound interest, and thus, unjustly, illegally, and oppressively increased the said pretended debt.

3. Because, if any such debt was due from the said David Peter in his lifetime, and at the time of his death, which happened in the year 1812, the recovery of the same against these defendants, as the heirs and devisees of the said David Peter, in consideration of any real estate descended from, or devised by the said David, to these defendants, was barred by lapse of time and the provisions of the act of limitations; and although these defendants, in their answer to the bill of complaint, and at the hear ing before the auditor, insisted on the lapse of time and the provisions of the act of limitations, in bar of the said debt or demand of the complainants, the auditor rejected their said defense, and allowed the said debt or demand.

4. Because George Peter, the surviving executor of David Peter, and one of the defendants 142*] to the said bill of complaint, *having elected to come in and contribute, with the complainants, to the expenses of this suit, filed an account as a creditor of the estate of the said David Peter, amounting to the sum of $26,607.78, which said sum of $26,607.78, the auditor has allowed as a just and proper charge against the estate of the said David Peter, and for the payment of which, the real estate, de vised by the said David to these defendants, ought to be sold. Whereas, these defendants say that there is no evidence in the cause to prove the same, or any part thereof, to have existed as a debt against the said David Peter in his lifetime, or to authorize a decree for the sale of the real estate devised to these defendants, by the said David, for the payment of the

same.

5. Because each and every one of the items of charge contained in the account of the said George Peter, so allowed by the auditor, was of more than three years' standing before the filing of the said account, by the said George Peter, with the auditor, and before the filing of the bill of complaint in this cause by the Bank of the United States, against these defendants and the said George Peter, and was, at the time of the filing of the said bill of complaint, barred by lapse of time and the provisions of the act of limitations; and these defendants, at the hearing before the auditor, and before the making of his said report, as appears by the said report, insisted on the lapse of time, and the provisions of the act of limitations, as a bar to the claim of the said George Peter; notwithstanding which, the auditor allowed the same. 6. Because the report of the auditor and the account accompanying the same, are not in pursuance of the order of reference to the auditor, but relate to claims and accounts not embraced in such reference.

7. Because the said report, accounts and state ments, accompanying the same, are unsupported by legal and competent evidence in the cause, and therefore ought to be set aside.

8. Because the sum allowed by George Peter, as surviving executor of David Peter, by the auditor, is for a general balance on the settlement of the executor's account, as is alleged,

for that amount overpaid the proceeds of the estate. which came to the hands of the executors, to be administered; and the defendants, as heirs and devisees of the real estate of the said David Peter, are not chargeable [*143 by the executors, or the survivor of them, with the payment of such balance. John Marbury,

Solicitor for the heirs and devisees of David Peter.

On the 21st of January, 1841, the cause came on for hearing on the exceptions to the auditor's report, and the bill, answers and exhibits, depositions and proofs and general replication; when the court decreed that the exceptions to the auditor's report, made by complainants, be overruled, and the exceptions of defendants to the auditor's report be confirmed; and that the bill of the complainants be dismissed with costs.

From that decree the complainants appealed to this court.

Messrs. Jones and Sergeant for the appellants.

Messrs. Com and Reverdy Johnson for the appellees.

The counsel for the appellants made the following points: That the court erred1. In overruling the exception of complainants.

2. In confirming the exceptions of defendants, the claims of the bank and of George Pe ter being sustained in the record by the proof as reported by the auditor.

3. In dismissing the bill.

Because: 1. The bill filed in 1827, and the proceedings thereon, were no bar to the relief now sought.

2. Lapse of time and the statute of limitations could not, under the circumstances of the case, operate as a bar.

3. Under the arrangement made between the banks and the executors for the benefit of the heirs, and according to the provisions of the will, the personal estate might properly be applied to the maintenance of the heirs.

4. If so applied (as it was) the real estate was liable to the debts, whether specifically so directed by the will or not.

5. On that part of the real estate specifically directed to be sold for the payment of the debts appearing to be insufficient, the rest of the real estate was liable; and it was not necessary, in such case, to wait till an actual sale ascertained the extent of the insufficiency.

6. All these grounds were maintained in the opinion of this court in the former case between these parties.

In that case the court determined that the real estate specifically directed to be [*144 sold to pay debts, was liable to be sold for that purpose.

This bill avers the insufficiency of that part of the real estate (it having been sold) to pay the debts; which is not denied in the answer. And the appellants contend that, under the will and by the laws of Maryland, the residue of the real estate is liable to the extent of the insufficiency.

Mr. Jones argued that the Act of Maryland of 1785 gave to simple contract creditors the same remedy against heirs as specialty creditors. The heirs and devisees in this case consumed the personal fund, and the teststor in

tended it should be so. He had, in effect, alienated his personal estate from the payment of his debts. Where the legatees have a lien, they must resort to it. (1 P. W., 679; 2 Powell on Devises, 654.) The executor can come in as a creditor. (3 P. W., 398; 3 Gill & Johnson, 324; 6 Gill & Johnson, 4.) The plea of limitations cannot avail, because the will creates a trust to pay debts which consist mainly in a charge upon the real estate. The form of making the trust is not material. If there is a charge upon the land and no trustee, the court will appoint one. (13 No. of Law Library, page 10.)

Mr. Coxe, contra.

The proceeding is exclusively upon the statute of Maryland of 1785, and not upon that of George II., making real estate subject to execution. But the debt must be in existence at the death of the testator, and the executor's claim, here, has arisen since. (See 1 Harris & Johnson, 469; 2 Bland's Chancery, 327.) In 1 Harris & Gill, 504, the petition was dismissed because it did not aver a deficiency of personal assets. The Court of Appeals reversed this but only upon the ground that the deficiency might have been proved. But here it is neither averred nor proved. (See 1 Bland, 415; 2 Bland, 250, 472; 4 Gill & Johnson, 296.) In 8 Peters, 144, the court consider this Act of 1785 as an enlargement of chancery powers, and say that the real estate is to be sold only when there are no personal assets. This claim was not against the testator; he died in 1812, and the Bank of the United States was not chartered until 1816. If it be by assignment, none is shown. If a guardian to the infants had been appointed, he could not have touched the real 145*] estate. How, then, can the executor *involve it? (Law Reporter of March, 1840, page 1.) As to limitations, there is only a general replication filed, and no special matter set forth in avoidance of the plea. The argument on the other side cannot therefore come in. 6 Peters, 64, says, "where the statute is pleaded, replication or amended bill must set forth the facts to take it out of the statute." (As to the effect of limitations, 1 Bland, 91, 470; 2 Bland, 366; 8 Peters, 528; 3 Cond. Ch. Rep., 155; 4 Harris & Gill, 126, 270; 2 Gill & Johns., 491. As to a trust reviving a debt barred by statute, 1 Russell & Mylne, 255, or 4 Cond. Ch. Rep., 413.) The bill does not aver a trust; and if there be one, who is the trustee? If it is the executor, the bill ought to have been against him alone. (2 Johnson's Ch. Rep., 614, 623, and authorities there cited.)

Mr. R. Johnson, same side, examined,

1. Whether the case as presented by the bill could be sustained, supposing the creditors to be the creditors of the testator at his death.

2. Whether they were in fact such creditors. 3. Whether the answer and proof did not meet the averments of the bill.

4. Whether the complainants could come upon the real estate either upon the ground of an assigned claim to the bank, or that the executor had overpaid.

1. The complainants can succeed only upon one of two grounds-upon the Act of 1785, or that there was a general trust created. It is settled in Maryland, that under the Act of 1785 there must be an averment and proof of a de

ficiency of personal assets. (1 Harris & Gill, 504.) But here the bill says there was a large personal estate. As to a general trust-how can that be, when there is a particular part of the estate devised to pay debts, if necessary? Testator died in 1812, and bill filed in 1836; in the meantime the debt has accumulated, by interest, to $46,000; the executor is a creditor to $26,000, making $72,000. The trust property is estimated at $29,000; the personal estate, which the testator thought might be insufficient, all gone, and the general estate is to make up $43,000. The whole estate will not pay the debt.

2. They were not creditors of the original estate. The executor's account begins in 1813, after testator's death, and the *other [*146 creditors claim by assignment; but none is shown. (See 7 Harris & Johns., 134; 4 Gill & Johns., 303; 6 Gill & Johns., 4.)

3. Answers rely upon limitations and lapse of time. Morrison v. Bell (1 Peters) decided that the court would not try to get out of the statute, and in Gray et al. (1 Harris & Gill), adopts the same principle. Can the creation of a trust upon a part of the estate prevent the statute from protecting the rest? Did not the testator intend that his debts should be soon paid, and the residue of his estate go to his children, free from debt? Between the cestui que trust and the trustee, the statute stops; but if other parties are brought in, it is different. If it is the law which makes this property responsible, then it is not the intention of the testator; and if so, there was no trust, and the statute must run. (2 Story's Equity, 735, note; 2 Sch. & Lef., 630.)

4. The dismissal of a former bill is a bar to this. (2 Story's Equity, 740; Cooper's Pleading, 269-271; Mitford, 237.)

Mr. Sergeant, in reply, for appellants:

The hardship of this case is not on the side of the defendants; it is one of obstinate ingenuity on their side. Debt has never been paid, and children have had the benefit of the personal estate. No mismanagement of the fund anywhere. The creditors are worse off than the family. The Bank of Columbia broke long ago; if it had exacted its debt immediately, it would have been called a Shylock. The respondents are residuary devisees; the testator first provides for his wife and then for his debts, and the will is the law of the case. (Mr. S. here gave a history of the case.) The bill does not profess to be under the Act of 1785. There was a special agreement of counsel, in which the defendants waived any objection to the jurisdiction of the court, &c.; they cannot now deny that the debt was due by the testator. We were entitled to the real, in aid of the personal, in 1813, and are so still. A devise of a part of the land to pay debts does not exempt the rest. Whoever takes the land takes it as a trustee. Jones v. Scott (1 Russell & Mylne) says, that the intention of a testator to make a trust prevents the statute from running. (See 2 Story's Equity, 737, 741.) The question in the case is, whether the executor shall be ruined, and the legatees *get the land for [*147 nothing. The family all concurred in what was done: the heirs and devisees had as much right as we had to go into chancery and have the estate settled up. As to the former suit