(Wimmer's Appeal.)

generally, and is lately established in England by statute. Priv. Lond. 70, 187. Hob. 225. 1 Cro. 699. 1 Prest. Abs. Tit. 336. None of these were known to the common law; but may be accounted for, when we recollect that many of the first colonists who accompanied William Penn, came from the city of London. In 1701, by the act for establishing courts of jurisdiction in the province, the Orphan's Court had power to award process, and cause to come before them all and every such person and persons as were, or should be, entrusted with, or in any ways accountable for any lands, tenements, goods, chattels or estate, belonging, or which should belong to any orphans, or persons under age, either as guardians, tutors, trustees, executors or administrators, and cause them to make and exhibit within a reasonable time, true and perfect inventories and accounts of the said estate, and to require and take bonds and securities of such guardians, trustees, tutors, executors and administrators, for the legacies, portions, shares and dividends of estates, real and personal, belonging to orphans and minors, as occasion shall require, &c. This act was repealed not long afterwards: but in 1713, the court was revived, and its jurisdiction more precisely marked out, as well as extended, by an act, which remained in force from that time till 1832. It was declared a court of record; and power was given to it to cause to come before it all persons who, as guardians, trustees, tutors, executors, administrators, or otherwise, should be entrusted with, or in any wise accountable for any lands, tenements, goods, chattels or estate, belonging to any orphan or person under age, and to cause them to make and exhibit inventories and accounts of the estates. They were also empowered to oblige the register general, or his deputies, to bring in duplicates of all bonds, accounts, &c., relating to such estate. By the third section, they could compel persons, having the care and trust of minor's estates, to give security, if like to prove insolvent, or neglecting to file inventories and accounts. By the fourth section, executors, guardians, or trustees might, by leave of the court, put out their minors' money at interest; and in the eleventh section other powers over trustees for minors were given to the court. Various supplements to this act, and acts on other subjects, passed from time to time, greatly enlarged the power of the Orphan's Court. Most of the provisions of these acts have now been introduced into the several revised codes of laws, passed by the legislature since 1830.

In the fourth section of the act of the 22d March, 1832, relating to Orphan's Courts, it is declared, that "the jurisdiction of the several Orphan's Courts shall extend to, and embrace the appointment, control, removal and discharge of guardians,-the settlement of their accounts-the removal and discharge of executors and administrators, deriving their authority from the register of the respective county-the settlement of the accounts of such executors

(Wimmer's Appeal.)

and administrators, and the distribution of the assets, or surplusage of the estates of decedents after such settlement, among creditors or others interested; to the sale or partition of the real estate of decedents among heirs—and, generally, to all cases within their respective counties, wherein executors, administrators, guardians or trustees are, or may be possessed of, or undertake the care and management of, or are in any way accountable for any real or personal estate of a decedent-and such jurisdiction shall be exercised in the manner hereinafter provided." The fifty-seventh section points out the manner of proceeding in various clauses, adapted to the respective cases, against persons answerable to the jurisdiction of the court. Sections fourteen, sixteen, and twenty, speak of trustees, and other sections, of executors, administrators, guardians,

or other accountants.

It will be observed, by a comparison of the acts of 1701 and 1713, with that of 1832, that the language of the latter is more extensive, in relation to the jurisdiction over trustees, than that of the former. The acts of 1701 and 1713, were confined to cases of trustees having property belonging to orphans or persons under age; but the act of 1832 comprehends, generally, all cases where trustees are accountable for the estate of a decedent. This change, in the words of the act, was evidently intended to enlarge the power of the court; and there are many instances in which such a power is salutary and useful; furnishing a more complete and speedy remedy against a trustee, than could otherwise be obtained. It is true that a remedy is here given to a cestui que trust of property, which had been the estate of a decedent, which other cestui que trusts might not enjoy. But it seems to have been the policy of the legis lature, to confer on the Orphan's Court the superintendance of the property of decedents, in almost every respect, and to make all persons accountable in that court, into whose hands such property came; and, indeed, to enable it to hear and determine, by proceedings different from those of courts of common law, almost all judicial transactions, immediately arising from the decease of testators or intestates. In the recent codes, further jurisdiction is vested in this court over many subjects never before possessed. I am of opinion that the Orphan's Court had power to call Wimmer to account, as trustee, under the will of M. Detterly, senior, by the provisions of the act of the 29th March, 1832.

But in the case before us, the prior decree of the Court of Common Pleas, on the petition of Wimmer, dismissing him from his trust, was conclusive; and after that decree, the Orphan's Court could not proceed to compel him to appear there and settle his accounts. By the third section of the act of the 14th of April, 1828, where a trustee has executed the trust or powers delegated to him, he may file his accounts in the Court of Common Pleas, on oath or affirmation, exhibiting a particular statement of his receipts and

(Wimmer's Appeal.)

expenditures, and after approval by the court, may pray a discharge. Citation is then to issue to persons interested, and the court are to proceed to hear and determine, and if it appears that the trustee has executed the trust agreeably to his power, he is to be discharged for ever. By the fourth section, any trustee who may not have executed the trust or power delegated to him, and who is desirous of being discharged from the further execution of the trust, may make application to the court, setting forth the facts, and praying the leave of the court to make a settlement of his accounts, so far as he has proceeded in the execution of the trusts, and that on surrendering the residue of the estate under his care to such person or persons as the court may appoint, the court will make an order dismissing such trustee from the duties of his appointment-whereupon the court is to proceed to hear and determine the matter, and make such order as to them shall appear just and equitable; and if it shall appear that the trustee has executed the trust agreeably to his powers, he shall be discharged therefrom for ever. The 5th section gives a right of appeal within one year.

It was under the 4th section that the proceedings in the Common Pleas in this case were had. Wimmer stated in his petition the appointment of M. Detterly, Jr. and himself executors-that_the portion of Margaret was to remain in their hands-that Detterly received Margaret's share, and acted as her trustee-his decease, and the devolution of the trust on Wimmer-that he was desirous of being discharged from the further execution of the trust, and had never received her share in trust for her use, and prayed the court to make an order dismissing him from the duties of his appointment and to appoint another. Atherholt's petition confirmed this statement, and both were accompanied by an affirmation. The court then decreed that Wimmer should be discharged from the trust for ever. In so doing, we must take it for granted it was after hearing and examination of the allegations and proof-that it appeared to them, in the words of the act, just and equitable they should do so that it also appeared Wimmer had executed the trust agreeably to his powers, and that the contents of his petition were true, namely, that he had received no trust money and had no account to settle. Otherwise the court would not have dismissed him, without first requiring him to settle his account. If, after being thus for ever dismissed, on the ground that he had executed his trust, and had received no moneys as trustee, he can again be called on in another court, to answer a charge that he had received money as trustee and had an account to settle, it is evidently a proceeding directly at variance with the former, and contradictory to the decree of the court. The principle is now so familiar as almost to render it superfluous to refer to it, that the decree of a court of competent jurisdiction, on a matter within that jurisdiction, cannot

VOL. I.

14

(Sletor v. Oram.)

be controverted by a proceeding in another court. Here the proceeding in the Orphan's Court brings directly in question, matters already heard and adjudicated in the Court of Common Pleas : and therefore the proceeding in the Orphan's Court was in this respect

erroneous.

[PHILADELPHIA, JANUARY 22, 1836.]

SLETOR against ORAM.

Decree reversed.

IN ERROR.

A discharge of the person of a debtor, under the insolvent laws of this Commonwealth, does not prevent the operation of the statute of limitations against the claim of the

creditor.

UPON a writ of error to the Court of Common Pleas of Northampton County, it appeared that Davis Oram, (for the use of John Carey, Jr.,) had brought an action on the case against John Sletor, to April term, 1833. The original writ was issued on the 2d of April, 1833. The plaintiff declared in indebitatus assumpsit, for goods sold and delivered, and the defendant pleaded non assumpsit, and payment with leave, &c., and non assumpsit infra sex annos; upon which pleas issues were joined.

The case came on for trial in the court below, on the 26th of January, 1835, when the plaintiff, after proving the sale and delivery of certain goods to the defendant, on the 8th of June, 1816, gave in evidence the record of certain proceedings in the Court of Common Pleas of Northampton County, by which it appeared that on the 27th of January, 1821, John Sletor presented his petition to the said court, praying for the benefit of the insolvent laws of the state; and that on the 17th of February, 1821, he was discharged according to law; having previously executed an assignment to William Barnet and John Carey, trustees appointed by the court. The trustees so appointed having declined acting, William Innes was appointed in their place on the 18th of April, 1821. In the month of July, 1823, Barnet and Carey, the trustees first appointed, assigned the trust property to Innes, who, on the 21st of October, in that year, executed the bond required by law. But it did not appear that the surety was approved of by the court. In the list of creditors attached to his petition for the benefit of the insolvent laws, Sletor included the debt due to Oram. It was admitted that

(Sletor v. Oram.)

the real estate returned by Sletor, in his petition, was sold by the sheriff, after his discharge, upon judgments obtained prior thereto. Under these circumstances, the counsel for the plaintiff requested the court to charge the jury, "that the statute of limitations did not protect the defendant in this case, he having been discharged under the insolvent laws of this Commonwealth; and the assignees appointed by the court not having acted or become qualified; and the real estate of the defendant having been sold under previous judgments."

In answer to which, the court charged the jury that the statute did not protect the defendant. "That under the provisions of the insolvent laws, and the construction given to them by the Supreme Court, in the case of Feather's Appeal, (1 Penn. Rep. 332,) the statute of limitations, as such, must be laid out of view in this case; and that it did not apply in cases generally, where there has been a discharge under the insolvent laws now in force in this Commonwealth, although a presumption of payment may arise from lapse of time, which would protect the defendant."

In this court two errors were assigned, but the only point insisted on, was the direction given by the court below, on the subject of the statute of limitations.

Mr. Brooke, for the plaintiff in error, having stated the question, was stopped by the court.

Mr. Porter, for the defendant in error. The thirteenth section of the act of the 26th March, 1814, provides, that "notwithstanding the discharge of any debtor by virtue of this act, all and every debt and debts, due and owing from such debtor, and all and every judgment had and taken against him, shall stand and be good and effectual in law, to all intents and purposes, against the lands, tenements, hereditaments, goods and chattels of such debtor, which he or any person in trust for him at the time of his discharge shall have had, or at any time thereafter shall or may be in any way seized or possessed of, interested in, or entitled to, in law or equity, &c. and it shall be lawful to take out a new execution," &c. The language of the act is general; and being subsequent to the act of limitations, must be taken to abrogate it, so far as respects insol

vents.

There are many cases, in which the statute is held to be suspended, although they are not in the number of exceptions. 1 Wash. (Virg.) Rep. 147. Munford's Dig. 408, Pl. 7. Diechman v. The Northampton Bank, (1 Rawle, 54.) Power v. Hollman, (2 Watts. 218.) Thompson v. M'Gaw, (2 Watts. 161.) In Feather's Appeal, (1 Penn. Rep. 332,) the judge who delivered the opinion of the court,