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496 POST v. MACKALL.
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POST v. MACKALL.
A defendant shewn to be of unsound mind may have a guardian appointed to
answer for him, without issuing a writ de lunatico inquirendo.
A decree for a sale of the realty, in a creditor's suit, in general establishes the plain-
tiff's claim, and the insufficiency of the personal estate. —Where a creditor, of
any kind, comes in under the decree he is bound by it; but where there is an out-
standing incumbrance, the surplus will not be paid to the defendant to the preju-
dice of the purchaser. —The statute of limitations cannot be put in by any one
who has nothing to protect by it; and when relied on, in general terms, is applied
according to the nature of the claim; is only to prevail as it may apply to the
representative of the personalty or the realty; and runs up to the time of filing the
voucher of the claim. —It enures only to the benefit of him who relies on it. —The
effect of an endorsement of payment as evidence to take a case out of the statute.
The mode of effecting a distribution where there are conflicting pleas of the
statute. —The distinction between simple contract and specialty debts in general,
and as regards the statute of limitations.
An absolute judgment against an executor or administrator conclusive as between
the parties to it; but not so as between such creditor and the heir; yet the heir
may, to that extent, obtain reimbursement from the executor or administrator. —
The personal estate roust be so disposed of as to leave no superannuated slave a
burthen upon it, or upon the public. —The marshalling of assets in what cases it
may be made without prejudice to the creditor. —The lien of a judgment, which
has been suffered to lapse, cannot be revived so as to overreach any then existing
or intervening lien.
THIS bill was filed on the 18th of June, 1829, by Joel Post,
Allison Post, and Waldron B. Post, joint traders of the city of
New York, and Henry O. Middleton, of Virginia, against Benja-
min B. Mackall, Edmund Key and Margaret his wife, Louis
Mackall, Rebecca Mackall, Christiana Mackall, and Caroline
Mackall.
The bill states, that the plaintiffs sue as well for themselves as
the other creditors of the late Benjamin Mackall, who, with the
defendant Key, was indebted to the plaintiff Middleton by several
single bills in the sum of $3, 240, which single bills he assigned to
the other plaintiffs for a valuable consideration; that, after the
death of the late Benjamin Mackall, suits were brought on them
by the plaintiff Middleton for the use of the other plaintiffs against
the defendant Benjamin B. Mackall and Richard H. Mackall, the
administrators of the deceased, and the defendant Key; that Rich-
ard H. Mackall died; and absolute judgments were recovered
against the administrators, or the survivor of them, for principal,
interests and costs, the whole of which yet remains unpaid; that
the defendant Key, against whom also judgments were obtained,
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