finally proceeded in pursuant to the principles of this Decree.

Banister and Wife against M'Kenzie.

Decided, Dec 2d, 1819.

1. If, by a

deed of mar

invested in

"stocks, or

lots,"-the

trustee is

PREVIOUSLY to the marriage of John Monroe Banister and Mary Burton Augusta his wife, a Deed of marriage settleriage settlement was made, by which it was provided that ment, property be concertain property real and personal, of the said Mary, veyed in should be invested in Bank Stocks, or freehold lands or trust, to be Lots in this State, to be held by Edmunds B. Holloway, “Bank in Trust to pay the annual profits to the husband and freehold wife, and the survivor, for life, remainder to their chil- "lands or dren; and, in default of such issue, to the right heirs of the said Mary. The said trustee having departed this not thereby life before the said investment was made, Donald M Ken- make the inzie was appointed by the Superior Court of Chancery vestment in for the Richmond District, in June 1816, to act in his States six stead; whereupon, the parties being at that time unwil- per cent. ling to purchase lots or land; bank stock being high; and Government stock comparatively low; the said M•Kenzie invested nearly the whole fund in United States six per cent. stock.

In January 1819, a Bill was filed, in the same Court, by Banister and wife; admitting that the trustee in purchasing the said 6 per cent. stock had made a yery judicious and fortunate temporary investment; but remarking that such investment was not authorised by the Deed; and, for various reasons set forth in the Bill, insisting that it would be beneficial to the complainants, as well as their right, to have the trust specifically performed, by selling the said stocks, and investing the proceeds in a tract of land.

The trustee, by his answer, admitted the correctness of the views of the plaintiffs, and the expediency of carrying their wishes into effect; but, as they had only the life estate, and infants were interested, he considered the

authorised to

United

stock.

1819.

DECEMBER, interposition of the Court necessary for his instruction and direction. He also tendered a resignation of the Banister and trust; requesting the Court to appoint another trustee. The infants, by their guardian ad litem, submitted the McKenzie. whole subject to the Court.

wife

V.

Chancellor TAYLOR was of opinion that the purchase of the United States six per cent. stock, under the circumstances of this case, was a good execution of the trust under the deed; and therefore dismissed the Bill:from which decree the plaintiffs appealed.

The cause was submitted by the Counsel for the appellants; the appellees not appearing; and the following was this Court's opinion.

The Court, not concurring in opinion with the Court of Chancery, that the purchase of the United States six per cent. stock mentioned in the proceedings, was a good execution of the trust confided to the trustee by the Deed of October 15th 1807, reverses the Decree with costs, and remands the cause, to have another trustee appointed, if necessary, and the trust carried into execution pursuant to the prayer of the Bill.

Decided, Dec. 4th, 1819.

1. In a suit by the assignee

Johnston against Hackley.

RICHARD S. HACKLEY assignee, brought assumpsit in the County Court of Spottsylvania against Richard Johnagainst the ston, assignor of a Bond executed by a certain James assignor of a bond, if it Haydon; stating, in his declaration, that he instituted a appear that, suit on the bond, and used due diligence in prosecuting after judgment against the same; but was unable to recover the money, or any the obligor, part thereof, of the said Haydon; as by the record and was return proceedings in the said suit, appeared, &c.

na; and that,

ed nulla bo- At the trial, on the plea of non assumpsit, the plaintiff afterwards offered in evidence a record shewing that the bond, dated the assignee

sued out a

capias ad satisfasciendum, upon which the return was "executed on the body of "the defendant, who stands committed to the prison bounds, as per bond &c.;" the plaintiff can not recover, but must be considered as having brought his action prematurely; because, for aught that appears in the record, the obligor is still in custody under the ca. sa., or may have paid the debt.

1819.

V.

Hackley.

January 1st 1798, payable on demand, was assigned to DECEMBER, him, by Johnston, the 1st of March 1800: that the declaration, in his suit as assignee of Johnston against Haydon, Johnston was filed in November 1802; that he obtained judgment, April 7th 1803; that a fieri facias issued, April 12th 1803, directed to the Sheriff of Spottsylvania, whose return was "no effects;" also a capias ad satisfaciendum, June 28th 1803, returned," not found;" and another capias ad satisfaciendum, upon which the return was, "Executed on the body of James Haydon, who stands committed to the prison rules and bounds of this County, with William Grady security, as per bond dated the 23d January 1804."

To this evidence the defendant demurred, and a conditional verdict was found. Upon the demurrer, the County Court gave judgment for the defendant; which was reversed by the Superior Court, on the ground that the plaintiff in " this cause did use due diligence in suing "the obligor James Haydon, and in adopting a judicious "course of execution against him; and that a defect of "diligence could not be inferred from the lapse of time "between the assignment of the obligation to the plain

tiff and the commencement of the suit against the said “obligor; there being no evidence given to prove either "that the plaintiff knew that the obligor was in declin❝ing circumstances, or that the defendant required or "called on the plaintiff to commence a suit at an earlier " period."

The Superior Court therefore entered judgment for the plaintiff; from which the defendant appealed.

The cause was submitted by the Counsel for the appellant; the appellee not appearing; whereupon, Judge ROANE pronounced the Court's opinion, as follows.

Although, after the return of "no effects" on the fieri facias issued against the obligor in the case in question, it was not incumbent on the appellee to sue out a Capias ad satisfaciendum, in order to entitle himself to this action; yet, having taken out such Execution, which "tends to satisfy the debt," and as, (for aught appearing in the record,) Haydon the obligor is still in custo

1819.

DECEMBER, dy, under the ca. sa., or may have paid the debt; we are of opinion, that the appellee was premature in bringing Johnston this action. On this ground (without attending to other objections arising in the case,) the judgment is to be reversed, and entered for the appellant.

Hackley.

Decided, Dec. 8th, 1819.

1. A provision in a Will, that

the money arising from

Brown's administrator against Griffiths.

AN action of assumpsit was brought by James Griffiths against Samuel Booker administrator with the Will annexed of William Brown deceased, in the County Court the sale of of Lunenburg; for sundry services rendered, money exthe testator's pended, &c., by the plaintiff, for the said Brown in his personal property, af-life time.

ter payment of his just debts, shall be applied to certain

purposes, does not create a trust for the payment of

The defendant pleaded "non assumpsit by the testator," and the act of limitations. Upon the first plea, issue was joined; to the second, the plaintiff replied, in substance, that the testator had, by his Will, directed his debts to be paid; and that the suit was brought within five years next after the probate of the said Will. To this replication, the defendant rejoined that he was not, by the Will of his testator, or by his qualification as adminisof the opera-trator, bound to pay any debt barred by the said Act of Act of Limi. Limitations; and concluded to the Country; and the tations. plaintiff likewise.

the debts,

nor take
any debt out

tion of the

See Chandler's

At the trial, the plaintiff moved the Court to instruct executrix v. the Jury, "that a testator, directing by his last Will his

Neal's exe

& M. 124; Lewis's exe

cutor v. Bacon's legatees

and execu

cutors, 2 H. "debts to be paid by his Executors, takes all just debts "which he owes at the time of his death out of the operation of the Statute of Limitations; and that, if it should appear to the satisfaction of the Jury, that the defendtors. 3 H. &ant qualified as administrator within five years before "the bringing of the action, (the defendant having put "that fact in issue by his rejoinder to the second repli"cation of the plaintiff,) the running of the Statute of "Limitations is barred; and that the plaintiff's action "was not barred by the act of Limitations, for the reason

M. 89.

66

1819.

"in the above proposition contained." to which instruction DECEMBER, the defendant objected, "because the directions of the "testator by his Will," (which was set forth in hæc ver- Brown's ad"ba, bearing date in December 1803, and recorded in ministrator September 1804, the time of qualification of the adminis- Griffiths. trator being at April Term 1805,) did not impede the "running of the Statute aforesaid, or prevent it's bar"ring the plaintiff's action, which was instituted on the "11th of August 1808; and because no such fact, as is “supposed by the said proposition to be in issue, was put "in issue;"—but the Court overruled the defendant's objections, and instructed the Jury as requested by the plaintiff; to which opinion a bill of exceptions was filed. A verdict and judgment was rendered for the plaintiff, and affirmed by the Superior Court; whereupon, the defendant applied for and obtained a Writ of Supersedeas, by order of a Judge of this Court; alledging in his petition, that the Judgment of the County Court ought to have been reversed," because a direction by a testator, "that his debts shall be paid, will not revive a debt upon "which the statute of limitations has taken effect at the "time of the testator's death;" (a) “and because, if, ge"nerally such direction would have that effect, the testa- Vesey & ❝tor, in this case, only mentions the necessity of paying his Beams, 275. “debts, incidentally, as a measure necessarily precedent "to the compliance with other directions given by ❝ him.(1)

The following was the opinion of this Court.

There being no trust created by the Will in the proceedings mentioned for the payment of the debts of the testator, the Court without deciding what would be the effect of such a trust, if it existed, in a Court of Equity,

(1) Note. In the Will, there was no direction that the testator's debts be paid. The clauses in which the debts were alluded to, merely disposed of "the money arising from the sale of his land, "mill and personal property, which should remain after the payment of “ his just debts; and declared that he did not mean thereby to subject to the payment of his debts, the money arising from the sale of the real property, but of the personal property only.

(a) Burke v. Jones, 2