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7 How. 220-234

Notes on U. S. Reports.

702

original parties; Lee v. Hollister, 5 Fed. 757, and Lowry v. Fisher, 2 Bush, 75, 92 Am. Dec. 477, both holding renewals of notes did not pay original debt; Reel v. Livingston, 34 Fla. 384, 43 Am. St. Rep. 207, 16 So. 286, holding contingent liability of surety creates relation of debtor and creditor; Post v. Stiger, 29 N. J. Eq. 558, holding after breach of covenant of seisin the covenantee is a creditor. See valuable notes on "protection of contingent claims," 52 Am. Dec. 117, and on 66 voluntary conveyances," 14 Am. St. Rep. 744. Bills and notes. An indorser is never liable unless the maker has become so, and when both have become liable an action will lie against either; hence it was not necessary to look first to property of the maker before proceeding against the administrator of the indorser, p. 229.

Cited, Merchants' Nat. Bank v. Good, 21 W. Va. 467, collecting cases and holding each joint and several maker liable as principal.

Evidence. Where the personal liability of an administrator has been established by a judgment, suggesting a devastavit, and execution returned nulla bona, the judgment is good evidence of the debt as against the surety of the administrator, as well as the fraudulent grantee of the intestate, p. 229.

Cited and followed in Moses v. United States, 166 U. S. 600, 41 L. 1130, 17 S. Ct. 693, holding judgment against public officer for fraud evidence against sureties; Hills v. Sherwood, 48 Cal. 394, holding judgment against executor prima facie evidence of indebtedness of testator; Alston v. Rowels, 13 Fla. 130, holding representatives of deceased partner stand as creditors of surviving partner; Charles v. Hoskins, 14 Iowa, 473, 83 Am. Dec. 379, judgment against principal prima facie evidence against sureties; State v. Jennings, 14 Ohio St. 76, holding judgment against constable prima facie evidence against sureties; Chamberlain v. Godfrey, 36 Vt. 384, 84 Am. Dec. 693, holding sheriff's sureties bound by judgment, establishing neglect of deputy; Spencer v. Dearth, 43 Vt. 107, holding relation between joint and several contractors creates privity between them; Johnson v. Gill, 27 Gratt. 597, holding reports and decree against executor prima facie evidence against his fraudulent grantees; Stephens v. Shafer, 48 Wis. 63, 33 Am. Rep. 799, 3 N. W. 840, collecting cases and holding such judgment prima facie evidence of default and amount thereof. See note in 33 Am. Rep. 804, on "effect upon sureties of judgments against principals," and very exhaustive note in 83 Am. Dec. 383, on "judgments against principals as evidence against sureties."

Denied in Pico v. Webster, 14 Cal. 206, 73 Am. Dec. 650, holding sureties on official bonds are not bound by judgments against principal.

Equity. Although suit may be brought at law on the administration bond, where the personal liability of the administrator of a

fraudulent debtor is established by judgment, and execution against him has been returned nulla bona, yet a creditor may sue in chancery all persons concerned in the fraud, as well as in the estate, p. 230.

See valuable note on "creditor's right to resort to equity to reach assets," 25 Am. Dec. 313.

Estates of deceased persons.- While ordinarily the personal estate should be first resorted to for the payment of debt, rule is not applicable where administrator has been found guilty of devastavit, and the personal property is chiefly in the hands of his surety, who is also charged with being the fraudulent grantee of the intestate, p. 231.

Equity pleading.- In a bill against the fraudulent grantee of an intestate, it is not necessary to aver deficiency of the personal estate, but only to aver fraud and waste of the personal assets by such grantee, who is also the personal representative, p. 231.

Miscellaneous.- Cited in Carey v. Roosevelt, 91 Fed. 568, on point that assets of estate may be followed by creditors into hands of distributees; also in Indianapolis, etc., R. R. v. Indianapolis, 12 Ind. 624, but apparently erroneous.

7 How. 234-260, 12 L. 681, WAGNER v. BAIRD.

Laches.- Courts of equity, in cases of concurrent jurisdiction, will follow in obedience to, rather than by way of analogy, the statutes of limitations governing like cases at law; while in many other cases they will act upon the analogy of the limitations at law, p. 258.

Cited and followed in Badger v. Badger, 2 Cliff. 153, 154, F. C. 718, holding equity will not entertain suit barred at law; Bedilian v. Seaton, 3 Wall. Jr. 287, F. C. 1,218, refusing to set aside statute to enforce trust; Rugan v. Sabin, 53 Fed. 420, 10 U. S. App. 519, collecting cases and refusing to cancel deed where plaintiff waited for more than statutory period; Percy v. Cockrill, 53 Fed. 876, 10 U. S. App. 574, holding constructive trust ought not to be enforced after statutory period; Scheftel v. Hays, 58 Fed. 460, 19 U. S. App. 220, holding fraudulent transaction will not be set aside where complainant remains quiescent after statutory period; Kelley v. Boettcher, 85 Fed. 62, 56 U. S. App. 375, 376, collecting cases and holding suit for fraud not barred by laches within statutory period; York's Appeal, 110 Pa. St. 83, 2 Atl. 69, holding legal claim barred by statute, barred in equity. See valuable note on this subject in 12 Am. Dec. 368, 371. Cited,`arguendo, in Godden v. Kimmell, 99 U. S. 210, 25 L. 434, denying accounting; Sullivan v. Portland, etc., R. R., 4 Cliff. 226, F. C. 13,596, dismissing bill to foreclose mortgage; Halsey v. Cheney, 68 Fed. 768, 34 U. S. App. 50, affirming decree of Circuit Court dismissing bill for accounting.

7 How. 234-260

Notes on U. S. Reports.

704

Distinguished in Abraham v. Ordway, 158 U. S. 421, 422, 39 L. 1039, 15 S. Ct. 896, holding, independent of limitations at law, equity will apply defense of its own.

Laches.- Courts of equity, in cases where no statute of limitation directly governs, will act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands by refusing to interfere where there have been gross laches in prosecuting rights, unless it be shown that the laches were caused by the fraud or concealment of adverse party; accordingly claim under a voluntary post-nuptial settlement, more than forty years old, is stale, p. 258.

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That this holding has been widely affirmed and followed is attested by the citing cases: Landsdale v. Smith, 106 U. S. 392, 27 L. 219, 1 S. Ct. 351, holding bill showing unreasonable delay by complainant open to demurrer; Philippi v. Philippe, 115 U. S. 159, 29 L. 340, 5 S. Ct. 1185, presuming settlement by trustee when proceedings were not commenced within twenty years; Speidel v. Henrici, 120 U. S. 387, 30 L. 720, 7 S. Ct. 612, collecting cases and holding cestui que trust barred after lapse of fifty years from enforcing trust; Hammond v. Hopkins, 143 U. S. 264, 36 L. 150, 12 S. Ct. 432, holding cestuis que trustent barred by delay from enforcing trust; Abraham v. Ordway, 158 U. S. 420, 39 L. 1039, 15 S. Ct. 895, denying relief where nineteen years have elapsed before suit is brought; Fisher v. Boody, 1 Curt. 219, F. C. 4,814, collecting cases, refusing to set aside conveyance of land after a lapse of nine years; Marsh v. Whitmore, 1 Hask. 404, F. C. 9,122, holding suit in equity for accounting barred by plaintiff's laches; Naddo v. Bardon, 47 Fed. 790, reviewing cases, and holding ten years' acquiescence in repudiation of trust a bar to equitable relief; St. Paul, etc., R. R. v. Sage, 49 Fed. 324, 4 U. S. App. 160, refusing relief on ground of unreasonable delay in asserting claim to land; Reed v. Dingers, 56 Fed. 176, collecting cases and dismissing bill where delay of trustees to execute trust is unexplained; Halsey v. Cheney, 68 Fed. 768, 34 U. S. App. 50, affirming decree of Circuit Court dismissing bill for accounting; Johnson v. Toulmin, 18 Ala. 62, 52 Am. Dec. 220, offering decree denying relief where plaintiff acquiesced in exclusive possession of another; Martin v. Decatur, 31 Ala. 122, holding sufficient showing not made to excuse delay; Gibson v. Herriott, 55 Ark. 93, 29 Am. St. Rep. 21, 17 S. W. 590, holding right to set aside sale lost through laches; Sanchez v. Dow, 23 Fla. 449, 2 So. 844, holding claim barred when there has been delay in enforcing it; Woolfolk v. Beatly, 18 Ga. 524, holding failure to take administration out, no excuse for not enforcing rights; Murdock v. Mitchell, 30 Ga. 78, 76 Am. Dec. 636, granting injunction restraining administrator from commencing action; Harlow v. Lake Superior, etc., Co., 41 Mich. 590, 2 N. W. 917, collecting cases and holding bill for an accounting properly dismissed; Barton v. Long,

45 N. J. Eq. 850, 14 Atl. 570, refusing to set aside exchange of lands; Clark v. Potter, 32 Ohio St. 61, declining to enforce decree against innocent purchasers; Packer v. Noble, 103 Pa. St. 226, holding offer to perform contract made too late; York's Appeal, 110 Pa. St. 83, 2 Atl. 69, holding claim stale for failure to set it up within statutory period; Hayes' Appeal, 113 Pa. St. 386, 6 Atl. 146, holding that no reason for delay shown in bill; Doggett v. Helm, 17 Gratt. 97, dismissing bill for failure to prosecute suit with due diligence; Bargamin v. Clarke, 20 Gratt. 553, holding lapse of time in bringing suit barred appellant's claim; Wilson v. Barclay, 22 Gratt. 542, reversing judgment sustaining suit, brought after long delay; Scott v. Isaacs, 85 Va. 719, refusing to grant purchaser of note relief; Pussy v. Gardner, 21 W. Va. 485, refusing to cancel deed; Fowler v. Lewis, 36 W. Va. 135, 14 S. E. 455, holding long acquiescence, unexplained, defeated plaintiff's right to rescind sale. See valuable notes, discussing this subject, in 54 Am. Dec. 130, 131, 2 Am. St. Rep. 795, 803, 23 Am. St. Rep. 149.

Distinguished in Greene v. Bishop, 1 Cliff. 202, F. C. 5,763, holding failure to prosecute a suit within a year no bar to equitable relief; Kittle v. Hall, 24 Blatchf. 188, 29 Fed. 511, holding delay of seven years in bringing suit not unreasonable; Wilson v. Anthony, 19 Ark. 22, collecting cases and holding an elapse of six years not an unreasonable time within which to file bill.

Miscellaneous.- Miscited in People v. Nostrand, 46 N. Y. 382, holding that an office is a public charge or employment.

7 How. 260-262, 12 L. 692, MATHESON v. BANK OF MOBILE. Supreme Court, on error to State court, may examine into the validity of State statute challenged as infringing Federal limitations, only when such question is raised and decided by the State court of last resort in favor of the validity of such statute, p. 261.

Cited and followed in Fleming v. Clark, 12 Allen 197, holding the necessity of decision of State court of last resort cannot be waived by agreement.

Appeal and error.- Where Alabama Supreme Court affirmed a judgment on the ground that no transcript had been filed. and no question or matter of any right in contest in the suit was raised and decided, the record presents nothing which the Federal Supreme Court is authorized to review, p. 261.

Cited and followed in Nauer v. Thomas, 13 Allen, 577, holding record of judgment fails to disclose any question to give United States Supreme Court jurisdiction.

7 How. 262-272, 12 L. 693, M'ARTHUR'S HEIRS v. DUNN'S HEIRS.

Land patents.— Where validity of patent granted upon location in the name of one deceased is questioned, the proposition of law that

VOL. IV — 45

7 How. 272–276

Notes on U. S. Reports.

706

an entry made in the name of a dead man is void, is not decisive upon it. The second sections of the acts of 1807 and 1823, providing no locations shall be made on tracts for which patents have previously issued, protects patents, whether entered in the names of persons living or dead, pp. 268, 271.

Cited and relied upon in Niswanger v. Saunders, 1 Wall. 439, 17 L. 601, rendering void a subsequent entry, where first survey is regular on its face; Summers v. Davis, 49 Tex. 555, holding act similar to proviso of 1807 protected a void title from a subsequent location; Winsor v. O'Connor, 69 Tex. 577, 8 S. W. 522, holding under act similar to proviso of 1807, land embraced in a void grant protected; Massey v. Galveston, etc., R. R., 7 Tex. Civ. App. 653, 27 S. W. 209, holding land surveyed protected from subsequent location by act of 1858. See valuable note discussing this subject in 83 Am. Dec. 468. Cited, arguendo, in Traver v. Smith, 38 Ala. 141, refusing executor right to maintain action on patent issued in the name of dead person.

Distinguished in Price v. Johnston, 1 Ohio St. 395, holding that under the proviso of act of 1807, a patent taken in name of one dead does not inure to benefit of heir; Stubblefield v. Boggs, 2 Ohio St. 219, upholding location on land previously covered by an unsurveyed and void entry; Saunders v. Niswanger, 11 Ohio St. 304, 305, holding survey unsupported by valid warrant and made without authority not a bar to subsequent location.

7 How. 272-276, 12 L. 698, MACE v. WELLS.

Bankruptcy. Where the surety of a promissory note, not yet due, liable for its payment, fails to prove under fifth section of the bankruptcy act his demand against the maker of the note, who had become bankrupt, such demand, under the fourth section of the same act, is barred by a certificate and discharge in bankruptcy, pp. 275, 276.

Cited and followed in In re Perkins, 6 Biss. 192, F. C. 10,983, 10 N. B. R. 535, holding that liability of principal to surety exists when instrument is signed; In re American, etc., Co., 12 Bank. Reg. 57, 1 Fed. Cas. 716, holding insurance policyholder entitled to share in dividends before final dividend; Lipscomb v. Grace, 26 Ark. 236, 7 Am. Rep. 610, holding certificate of discharge bar against surety tailing to prove his contingent liability; Bates v. West, 19 Ill. 135, olding contingent liability upon warranty discharged by certificate in bankruptcy; Noland v. Wayne, 31 La. Ann. 403, holding principal's liability discharged though surety had paid nothing at time of adjudication; Treat v. Gilmore, 49 Me. 39, holding indorser's liability upon note before payment provable against bankrupt; Hunt v. Tavlor, 108 Mass. 509, holding indorser paying after commencemat of bankruptcy proceedings not entitled to recover from drawee; Fisher v. Tifft, 127 Mass. 315, holding failure of partner to prove

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