63S WATKINS v. DORSETT.

creditor himself.(a) Had Walter Clagett, who thus became a creditor
of Samuel W. Clagett, made this claim; the circumstance of his
having delivered up the surplus, and the great length of time which
had elapsed, from the delivery on the 9th of April 1819 until the
institution of this suit, without accounting for the unqualified
manner of the delivery, and the delay, would have been con-
sidered as a complete bar. But, in this case, the statute of limi-
tations, as such, cannot properly be applied; because, that statute
is a defence given to a debtor against a creditor; and here it is not
the creditor himself who makes the claim. Yet the result of what
this defendant claims a right to do would be the same as if the
executor of Walter Clagett were here, as plaintiff, asking pay-
ment and to have his claim sustained against these parties as
defendants. And, consequently, whatever defence they would, in
such case, be permitted to make, they ought, as plaintiffs, to be
allowed to have the benefit of in the form in which the matter is
now presented, at least so far as to bind this defendant.

I am therefore of opinion, that the circumstances, and lapse
of time raise a conclusive presumption, that this claim of Walter
Clagett either never existed or has been satisfied.

Whereupon it is decreed, that the injunction heretofore granted
in this case be and the same is hereby made perpetual; and it is
further decreed that the defendant pay unto the plaintiffs their costs
to be taxed by the register.

(a) Robinson v. Tonge, 3 P. Will. 400; Gist v. Coekey, 7 H. & J. 139.

Ex PARTE STREET.—This petition was filed by John Street on the 3d of April
* 1806, under the act of 1785, ch. 72, s. 4, stating, that John Cook deceased had devised
his land to be sold for the payment of his debts without authorizing any one to make
the sale; that the personal estate of Cook had been exhausted; and that the peti-
tioner, as his executor, had paid debts to a much greater amount than the assets
which came to his hands. The real estate was accordingly decreed to be sold. After
which the case having been brought before the court for further directions, as to the
distribution of the proceeds of sale among the creditors:

17th June 1809.—KILTY, Chancellor.—The rule as stated by the auditor, of giving
a priority to claims against the deceased to those which arise to the executor from
an overpayment of the personal estate, was established by the late Chancellor. It
has been departed from since, in cases where such overpayment was made on
account of a judgment or other lien; even so far as to put the executor in the place
of such creditor to the extent of his lien. In the present case the overpayment does
not appear to have been made expressly on account of any such judgment; but inas-
much as there were claims on judgments paid by the executor exceeding the amount
of the overpayment, and the other claims now exhibited are not entitled to any
preference, it is thought proper to let the executor's claim come in equally with
others.