Cooper v. Lyons. of the estate by a note of the intestate under seal, dated May 12, 1857, and payable on the first of the following September. The complainant Galbraith claimed to be the holder of the intestate's note, dated December 29, 1858, payable one day thereafter. No suit had ever been brought on either of these notes before the filing of the present bill. After the dismissal of the bill as to the heirs, it became simply an action of each complainant on his demand against the administrator, and, as an incident to the recovery of judgment, for an account of the personal assets in the hands of the administrator and receiver. No objection was taken in the pleadings of the defendants to the jurisdiction of the court, and probably no defense could have been made on this ground since the act of 1877, extending the jurisdiction of the chancery court on legal causes of action. The demands of the complainants were unconnected with each other, upon which separate suits might have been brought against the administrator for the recovery of judgment. Each complainant stands upon his own right of action. And this is so even to the incidental matter of account, as much so as if the bill had been filed by one of them for himself and other creditors, and the other had come in by petition, and made himself a party. Under the provisions of the Code, secs. 3155, 3159, if a decree adjudges independent rights it will remain in force as to those parties who do not appeal. The appeal of Galbraith does not, therefore, bring up the case as to Cooper, so far as the adjudication of Cooper's debt is concerned. Cooper v. Lyons. Whether Cooper can claim the benefit of any decree of this court, upon the appeal of his co-complainant, against the receiver and his suretics, if the chancellor's decree should be modified in this regard, need not now be determined. Treating the bill as an action by the complainant Galbraith for the recovery of a judgment on his note against the administrator Watterson, the time of the bar of the statutes of two, six and seven run out. years has The bill seeks to avoid the result by averring that the administrator "has made request for delay and promises to pay which prevent the bar of the statutes." And there is proof tending to show such request, and repeated promises by the administrator to pay when he could get the money out of the Walters or the Phillips lands. Whether the request and prom ise were sufficient to save the bar of the statute of two years, and the pro-confesso order against the administrator would save the bar of the statute of six years, it is unnecessary to enquire. A sufficient request for delay will not stop the running of the statute for seven years: Loyd v. Loyd, 9 Baxt., 406. The statute (Code, sec. 2786) is a positive prescription, which not only affects the remedy, but extinguishes the right. It protects the estate of the decedent against all creditors of the decedent, whether the estate be in the hands of the personal representative, the heir or the distributees: Peck v. Wheaton, M. & Y., 353; Stone v. Sanders, 1 Head, 248; Rogers v. Etter, 8 Baxt., 13. Even the State is bound by the statute, because, as well said by Hammond, U. S. Dist. Shown v. McMackin. J., in Pulliam v. Pulliam, 10 Fed. Rep., 76, it is something more than a statute of limitations, it constitutes a rule of property: State v. Crutcher, 2 Swan, 505. Such a statute, all of our authorities agree, need not be pleaded. The question is not one of remedy but of title: Kegler v. Miles, M. & Y., 426; Bomar v. Hagler, 7 Lea, 85-89. Affirm the decree as to complainant Galbraith with costs. A. N. SHOWN, Adm'r, v. ANDREW MCMACKIN. 1. CHANCERY PLEADINGS AND PRACTICE. Bill to have administrator appointed. Under the provisions of the Code, sec. 2209, et seq., a bill may be filed by the personal representative of one of the next of kin of a deceased person against another one of the next of kin having assets of the estate of the deceased in his hands, to have an administrator appointed, and for the collection of the fund. 2. ADMINISTRATION. Granted upon presumption of death. There being no statute in this State providing that after an absence of a given time without being heard from, administration may be granted of the estate of an absent person, the courts should be cautious in acting upon the presumption of death from lapse of time, and should, as a general rule, require diligent inquiry at the place where the party was last heard from. 3. SAME. Same. Presumption as to time of death. Where a person when last heard from expressed a possible intention of returning home in a reasonable time, and has not been heard from for over a quarter of a century, it may be presumed as a fact that he died at the end of seven years, and without issue, he having been unmarried when last heard from. Shown v. McMackin. 4. CHANCERY PLEADINGS AND PRACTICE. Answer as evidence. If the facts stated in an answer in avoidanee are a direct and proper reply to an express charge or interrogatory of the bill, the answer is evidence of these facts. FROM GREENE. Appeal from the Chancery Court at Greeneville, H. C. SMITH, Ch. H. H. INGERSOLL for complainant. R. M. MCKEE and ARMITAGE for defendant. COOPER, J., delivered the opinion of the court. In 1850, Andrew and John P. McMackin, young men and brothers, left their home in Greene county, and went to California. In the fall of 1853, Andrew returned home with $1,000 of his brother's money, John directing him to loan a part of it to his father, and to keep the residue for his brother. The father died in a year or two, and, his estate being insolvent, Andrew received back $350 of $500 loaned. John has never returned. The brothers had one sister, Martha J. Harrison, a married woman, who died in April, 1861, leaving children. The complainant qualified as the administrator of her estate in July, 1879, and filed this bill, on October 27th of that year, to have an administrator appointed on the estate of John, and to collect from Andrew the money due his brother. The bill states that John P. MeMackin expected to return home in a year or two after Andrew, but had never returned, nor sent any word or message to his friends. It says that he is not known to have Shown v. McMackin. been alive since 1853, and avers that he is dead, that he died before his sister, that he died intestate, unmarried, and without issue, leaving his brother Andrew and his sister Martha J., his only heirs and next of kin. It is further averred that no one will apply, nor can be found to administer on his estate, and the court is asked to appoint an administrator under the Code, sec. 2209. The chancellor appointed an administrator as prayed, and, on final hearing, granted the relief sought, and defendant appealed. The defendant demurred to the bill. One ground of demurrer is, that it does not appear from the bill that complainant can have any demand either against defendant or his brother, because it is not stated that complainant's intestate died before or after her brother. But this assignment is based on a mistake of fact, for the bill plainly avers that John is dead, and that he died before his sister. Whether these averments will be sustained merely by the presumption of his death arising from lapse of time, we may infer, but cannot know as matter of law from the allegations of the bill. Another ground of demurrer is, that administration cannot be granted because it is not shown that John had any estate in this chancery division. But the bill plainly avers that the money in Andrew's hands belongs to John's estate. The remaining cause of demurrer is, that the defendant is only liable to the estate of John, not to the complainant as distributee; that the statute does not contemplate the appointment of an administrator to be aggressive against other defendants, but for defense. But the statute authorizes |