THIS was an appeal from the Circuit Court of the United States for the district of West Tennessee. The bill was filed by Sarah Ann Thorp, but in the course of proceedings her marriage with J. M. Mattingly was suggested, and the suit thereafter conducted in the names of Mattingly and wife. The case is stated in the opinion of the court. It was argued by Mr. Robinson, no counsel appearing for the appellee.
The opinion of the court was delivered by: Mr. Justice Catron delivered the opinion of the court.
Mr. Robinson made the following points:
I. That if, when this suit was brought, Bylen had been alive and a citizen of Tennessee, and a party defendant, the plaintiff would not have been barred from proceeding against him by the statute of 21, Jac. 1, ch. 16, sec. 3, or by the Tennessee statute of 1715 taken from it, or by any other statute of that State. 1. Because, by the appointment of Bylen as guardian, an express trust was created, and the statute of limitations is no bar in the case of such express trust. (Pinkerton, &c., v. Walker and wife, 3 Hay., 221-'2; Bryant v. Pucket, ib., 252-'3; Parson, &c., v. Ivey, 1 Yer., 297; Armstrong v. Campbell, 3 Yer., 201; McDonald v. McDonald, 8 ib., 148; Smart and wife v. Waterhouse, 10 ib., 104; Porter v. Porter, 3 Humph., 586.) 2. Because the statute of 1715 does not bar actions of debt generally, but those only which are brought for arrearages for rent; (Kirkman v. Hamilton, &c., 6 Pet., 23; Tisdale v. Munroe, 3 Yer., 222;) and even if the plaintiff came within the 5th section, she comes within the disabilities provided for by the 9th section. 3. Because no statute of limitations in force in Tennessee bars an action on a specialty; neither such as Bylen gave when he qualified as guardian, nor such as was taken under the decrees of the Court of Chancery at Richmond. (Lawrence v. Bridleman, 7 Yer., 107; Hay v. Lea, 8 ib., 89; Rice v. Alley, 1 Sneed, 52;) and even if there were any statute of Tennessee prescribing a certain term of years within which an action must be commenced on such a bond as that, (pp. 36-'7,) the defendant does not show that such term of years has elapsed since the plaintiff married or attained the age of twenty-one years.
II. That supposing the plaintiff has a right to maintain a suit against Bylen or his representative for the money mentioned in said bond and the interest thereof, the right of action of Bylen against David H. Boyd, for the money received by the latter as agent, would not be barred by the time which has elapsed since Boyd received the money. For whether the attachment was right or wrong, Boyd claimed to hold and was allowed to hold the money pending the attachment, and is bound to answer for it when the attachment was terminated.
III. That seeing, if the plaintiff was to have a decree against Bylen, the latter would be entitled to a decree against Boyd, the proper course of equity is to decree immediately for the plaintiffs, against the administrator of Boyd–the party ultimately responsible. (Garnett, &c., v. Macon, &c., 6 Call, 349, and other cases cited in 2 Rob. Pract., 395-'8, old ed.)
IV. That the decree should be for $1,112.82, with interest from the 26th of October, 1826, (p. 32,) and the costs of this suit.
Spencer Roane devised to his grand-daughter, Sarah Ann Roane, one thousand dollars. She was a minor, residing in Kentucky; and Joseph N. Bylen, her stepfather, was her guardian. Bylen sued Roane's executors for the money, and recovered it as guardian. David H. Boyd acted as the agent of Bylen, and received the money in Virginia, and held it as agent. Fayette Roane, the father of Sarah Ann, owed William H. Roane, of Richmond, Virginia, a thousand dollars. Bylen was Fayette Roane's executor; and William H. sued out a subpoena and filed an attaching creditor's bill in the Superior Court of Chancery at Lynchburg, against Bylen and others, to which David H. Boyd was a party defendant. The main purpose of the bill was, to restrain the money held by Boyd for Bylen as guardian, in Boyd's hands, until Roane could obtain a decree against Bylen, and enforce payment from Boyd as the debtor of Bylen.
Roane's restraining order was sued out and executed on Boyd the 10th day of October, 1827.
May 4, 1829, Boyd answered the bill, and admitted that he had received $1,112 as agent of Bylen, guardian of Sarah Ann Roane, on a power of attorney, 'which money he intended to pay over to Bylen as guardian, until inhibited by the process of the court.'
The suit lingered on the rules at Lynchburg till July 4, 1853, the restraining order being in full force from 1827 to 1853. In the mean time, Boyd had removed to Tennessee, and died there on the 25th of August, 1851; and about two months thereafter, John H. Boyd, the defendant to this suit, administered on David H. Boyd's estate; and on the 5th of September, 1853, this suit was brought. The main defence set up is, the acts of limitation barring actions in Tennessee. The suit was brought within two years after John H. Boyd administered, and therefore the act barring suits against administrators does not apply; and the only question is, whether the suit is barred by the general law barring actions founded on simple contracts, if not sued for within three years next after the cause of action accrued.
The settled law of Tennessee is, that where an agent obtains money of his principal, and converts it to his use, and is not sued until three years elapse, the remedy by assumpsit is barred. (McGinnis v. Jack and Cocke, Martin and Yer. R., 361; Hawkins v. Walker, 4 Yer. R.)
It is also settled in Tennessee, that where the statute commences to run, it runs on, unless there is a new promise within three years next before suit is brought; and an acknowledgment by the defendant of an actual subsisting debt due to the plaintiff within the three years is deemed equivalent to new promise, as the law raises a promise to pay on the acknowledgment. (Russell, adm'r, v. Gass, Martin and Yerger's R., 270.) This acknowledgment was made by Boyd, in 1829, by his answer, filed in the Superior Chancery Court at Lynchburg. Had Bylen sued him at law, and the act of limitations been pleaded, the statement in Boyd's answer would have been a good replication.
The question then comes to this–whether Bylen, as guardian, or Sarah Ann Roane, after she became of age, had cause of action against Boyd whilst the suit at Lynchburg was pending? The act of 1819 (Virginia Revised Code, 474) in substance provides, that where a suit in chancery is prosecuted against a defendant who is out of the State, and against a defendant within the State, who has in his hands effects of or is indebted to the absent defendant, the court may make an order, and require surety, if it shall appear necessary, to restrain the defendant within the State from paying the debt by him owing to the absent defendant; or the court may order such debt to be paid to the attaching creditor, upon his giving sufficient security for the return of the money to such person, and in such manner as the court shall afterwards direct.
The act also provides how the absent defendant shall be notified by publication; and if he does not appear, the court may hear the plaintiff's proofs of the justice of his demand, and may proceed to take the bill for confessed, and to decree thereon as to ...