Hoye vs. Brewer and Troup.-1831. John Hoye, Jacob Fiery, and others, on the 23d day of January, 1829, stated that Henry Fiery died seized of a large and valuable real estate, which he devised to his three sons, Henry, Joseph and Jacob, to the last of whom he devised a tract of land lying in Franklin county, Pennsylvania. That he bequeathed to his three daughters, Mary, Catharine, and Susanna, the sum of £3000 each, to be paid to them, as they respectively attained the age of eighteen years, by his said three sons, whom he appointed his executors; that he charged his real and personal estate with the payment of his debts and legacies. The bill further states, that John Brewer, one of the complainants, in the year 1819, entered into articles of agreement with Jacob Fiery, one of the devisees, for the purchase of the tract of land devised to him, lying in Franklin county aforesaid, and paid a considerable part of the purchase money, and gave his bonds, with Adam Troup, the other complainant, as his security, for the payment of the balance of the purchase money. That the said Jacob Fiery, on or about the 17th Nov. 1820, assigned the said bonds to a certain John Hoye and Ann Hoye, who is since dead, having made the said John Hoye, her executor. The bill further states, that the complainant Brewer, had paid all the said bonds to the said John Hoye, except the two last, upon which suits have been instituted in Washington County Court, by Hoye against him the said Brewer. The bill further states, that the legacies bequeathed to two of the daughters have been paid; that the one bequeathed to his daughter Susanna had not been paid, and still remained a charge upon the land bought by him of said Jacob Fiery, in virtue of the provisions of his father's will. The said complainant, John Brewer, further states, that he has reason to believe that the bonds remaining due to said Hoye, upon which suits had been brought, would not be more than sufficient to extinguish the liability of the land purchased by him, to satisfy the legacy to Susanna, charged upon it. The bill further states, that at the time Brewer executed his bonds to Fiery, he did not know of the incumbrances upon Hoye vs. Brewer and Troup.-1831. the land bought by him, nor did he know of the same at the time of the assignment of his bonds to Hoye, or at the time he paid the several sums of money to him; that since the discovery of the said incumbrance, he has paid nothing, by reason of said assignments; that at the time he executed his bonds, he did not know that his bonds were to be assigned to Hoye, or to any other person. The object of the bill is then stated to be, to ascertain, whether the balance of the purchase money due by him, ought to be applied in the first instance, to satisfy the legacy due to the said Susanna, and if it should be so determined, that the bonds should be delivered up to Henry Angle, with whom the said Susanna had intermarried, and he be authorized to receive the money due thereon, from said Brewer, and give acquittances therefor. The bill then prays for an injunction to stay proceedings on said suits, and for general relief. The deed from Fiery to Brewer bears date on the 20th November, 1820. The answer of John Hoye to the said bill states, that in or about the year 1820, Jacob Fiery, one of the defendants, was indebted to him and Ann Hoye, since dead, in a considerable sum of money, and that he being pressed for payment at that time, by him the said Hoye, offered to assign to him and the said Ann Hoye, certain bonds which he was about to obtain from the complainant, John Brewer; that he agreed to receive the bonds as collateral security for the said debt, and on a day appointed for that purpose, accompanied the said Jacob Fiery to the house of the complainant, in order to take an assignment of the said bonds, as soon as they were executed. That Brewer expressed some apprehension, that if he executed the bonds, and they were assigned to him, Hoye, that he would press him for the payment of the money; that he assured Brewer he need not be under any uneasiness on that score; that all he wanted was to have his debt secured, and that he would not urge the payment for a considerable time, provided he would pay the interest punctually; that on receiving these assurances, Brewer appeared to be satisfied, and that the bonds were Hoye vs. Brewer and Troup.-1831. executed by Brewer, and assigned by Fiery to him, Hoye. That in consideration of receiving said bonds, he stopped further proceedings against the said Jacob Fiery, and relied upon the said bonds to discharge the said debt, due from the said Jacob to him and the said Ann, &c. In the will of Henry Fiery exhibited with the bill, there are the following clauses : "To each of my three daughters, Mary, Catharine, and Susanna, I give a bed, and the sum of £3,000, to be paid by my executors hereinafter named, as the said girls may respectively attain the age of eighteen years." "I charge the lands devised to my three sons, (Henry, Joseph, and Jacob,) and all the personal property whereof I die possessed, which is not herein before specifically devised, with the payment of my just debts, legacies, and devises, herein before given and made." The deed from Jacob Fiery to complainant, Brewer, also exhibited with the bill, bearing date November 20th, 1820, recites, "that whereas Henry Fiery did, by his last will and testament bequeath to his son Jacob Fiery," a certain tract of land, &c. There were other defendants to the bill, but their answers are considered immaterial. The case was referred to the auditor, for the purpose of ascertaining the amount due upon the legacy to Susanna. Afterwards, the County Court [TH. BUCHANAN, A. J.] passed the following decree: The above cause coming on to be heard, and being submitted for final decision by the solicitors of the parties, and it appearing from the report of the auditor, made pursuant to the order of this court, that there is still due to Susanna, one of the daughters and legatees of Henry Fiery, deceased, the sum of $12,257, with interest upon $8,000, part thereof from the 15th day of June, 1829; and it appearing further from said report, and proceedings in this cause, and the same being admitted by the solicitors of the defendants in court, that the whole of the personal estate of the said testator, has been applied towards Hoye vs Brewer and Troup.-1831. the payments of the debts and legacies, and that the amount still due by Jacob Fiery, as one of the executors and devisees of the said testator, to the said Susanna, exceeds in amount the balance unpaid, on the bonds of the said John Brewer, to the said Jacob Fiery, and by him assigned to the said John Hoye. It is thereupon this third day of June, 1829, adjudged, &c. that the injunction heretofore granted, be made perpetual. From this decree the defendant Hoye, appealed to the Court of Appeals. The cause was argued before EARLE, MARTIN, STEPHEN, ARCHER, and DORSEY, J. By Anderson and Taney, (Attorney General,) for the appellants. Price and Yost, for the appellees. STEPHEN, J., delivered the opinion of the court. After adverting to the facts alleged in the pleadings, he said, according to the principles of equitable jurisprudence, the personal estate is the natural fund for the payment of debts and legacies, and generally speaking, is first to be exhausted, before resort can be had to the real property. In the present case, the testator charges both his real and personal estate with the payment of his debts and legacies, and it should regularly appear upon the face of the pleadings, that the whole of the personalty had been applied, towards their extinguishment, before a court of equity could consistently, with established principles, decree the land to be liable for that purpose. The bill in this case does not expressly charge a deficiency of the personal fund; on the contrary, it only alleges that fact by a vague and doubtful implication, where it states, that he has "reason to believe that the bonds in suit as aforesaid, will not more than cover the liability of the said land." An averment so essential to the complainant's merits, ought to be expressly made, and not left to argumentative inference or construction. If the personal estate Hysinger vs. Baltzells.-1831. was adequate to the payment of the legacies, no liability could ever attach upon the land purchased by the complainant, and of course there would be no ground for his application to a court of equity for relief; although therefore, it was admitted, as stated in the decree, that the personal assets were exhausted, yet, as in equity, a party must always obtain redress secundum allegata et probata, without deciding upon the other points, raised during the discussion; we think the decree of the court below must be reversed, but without prejudice. DECREE REVERSED. HYSINGER US. T. & P. BALTZELL.-June, 1831. By the act of Nov'r. 1765, ch. 12, it is declared, that if a person who is liable to an action, shall be out of the province at the time the cause of action hath accrued, he shall have no benefit or advantage from the act of 1715, ch. 23, (the act of Limitations) provided, the person who has such cause of action shall prosecute the same, after the presence, in this province, of the person liable thereto, within the time or times limited, in and by the said act of 1715. HELD, upon the construction of this act: 1. That the acts of 1715, ch. 23, and 1765, ch. 12, are to be taken together, and to receive a construction to carry into effect the plain and obvious intention of the Legislature, that limitations should not attach against a creditor, where the debtor was absent from the State, at the time the cause of action accrued. 2. That if at any time after the cause of action accrued, the debtor, by his presence in the State, afforded the creditor an opportunity to prosecute his writ with effect, he should institute his action within the time required by the act of 1715, or his claim would be barred by limitations. 3. To bring a case within the act of 1765, the presence of the debtor within the State, must be such as to enable the creditor to avail himself of it; a secret, concealed, clandestine presence for any length of time, of which, the creditor could not take advantage, would not be sufficient. It must be so public, and under such circumstances, as to give the creditor an opportunity, by the use of ordinary diligence and due means, to arrest the debtor. Where a cause of action accrued in October, 1822, when the defendant was a resident of another State, and it appeared, upon a case stated, that the defendant was in Baltimore, where the plaintiff resided, in April 1823, "purchased other goods from the plaintiff, and remained there for two days," It was HELD, that limitations did not then attach, because it did not ap |