It Pratt et al. vs. Northam et al. appears to me, that in the present case there is no ground upon which the Court can say, that by operation of law, or otherwise, the assets have passed from the administration account to the guardianship account. Another ground of defence, which is relied on in the answer, and has been strenuously argued at the bar, is the statutes of limitations of Rhode Island. The lapse of time, too, since the giving of the administration bond, is relied on, to establish a presumptive extinguishment of liability under it. It may well be doubted, under the circumstances of this case, where there has been a fraudulent concealment of the assets, the existence of a long minority, and as far as the evidence goes, an entire ignorance on the part of the minors of their own rights, and of the facts leading to them, whether the mere lapse of time ought to furnish any bar to relief in a court of equity, without some other controlling equities on the part of the defendants to fortify it. But this need not be decided, for reasons hereafter stated. The bar under the statutes of limitation is twofold; (1.) it relies on the common statute, (Digest of 1798, p. 471,) limiting personal actions, and especially actions on the case, to six years. This statute is, for the most part, a transcript of the statute of 21 Jac. 1, ch. 16. Upon this part of the defence, it is unnecessary to say more, than that the present suit is brought to enforce a right growing out of a bond or specialty, and is not, either in terms, or by implication, an action within the scope of that statute. The other statute relied on, is the act for limiting suits against executors and administrators. (Digest of 1798, p. 300.) That act provides, "nor shall any action be brought against any executor or administrator in his said capacity, unless the same shall be commenced within three years next after the will shall be proved, or administration shall be granted; provided such executor or administrator shall give notice of his appointment," &c. Now the defendants aver due notice of their appointment according to the statute, and that more than three years have Pratt et al. vs. Northam et al. elapsed since they took the administration upon themselves. The bar, then, is complete, by the express language of the statute. Why then should it not avail in a suit in equity, as it most assuredly would in a suit at law? It is said, in the first place, that the statute of limitations does not bind courts of equity. That position, certainly, cannot be maintained in the broad extent in which it is stated; for in cases of concurrent jurisdiction it is clear, that courts of equity are bound by the statute equally with courts of law. That was the doctrine of Lord Redesdale in Hovenden vs. Lord Annesley, (2 Sch. & Lefroy. R. 607, 630,) and Mr. Chancellor Kent, in Kane vs. Bloodgood, (7 Johns. Ch. R. 90.) There are other cases, not of concurrent jurisdiction, in which the statute of limitations is applied by courts of equity by way of analogy to the law, in which courts of equity follow the law, and give effect to its regulations upon equitable titles. Bond vs. Hopkins, (1 Sch. & Lefr. 413, 428,) Cholmondely vs. Clinton, (2 Jac. & Walker R. 1.) Kane vs. Bloodgood, (7 Johns. Ch. R. 90, 110,) and Murray vs. Coster, (20 Johns. R. 576, 582,) expound and illustrate the reasons of the doctrine with great ability. In this last class of cases, equitable exceptions may well be admitted and justified, because the bar is furnished by the court itself, and stands upon no positive legislation. Now, in the present instance, the suit is strictly an action against the executors, and it is in a case where the foundation laid, as against them, rests solely on a bond, which is suable at law. Independent of that bond no contract exists, by which they are bound; and no equity is stated in the bill against them or their testator, except the naked obligation arising from the suretyship of the latter. It is strictly a case, therefore, as to them of concurrent jurisdiction. But it is said, that here is a case of fraud, and that fraud, even at law, constitutes a good exception to the statute of limitations; and a fortiori has been often admitted in equity. This, in a Pratt et al. vs. Northam et al. general sense, is true as to the common statute of limitations. But then the fraud must be the fraud of the party, setting up the bar of the statute. This statute of limitations, as to executors and administrators, is not created for their own security or benefit; but for the security and benefit of the estates, which they represent. It is a wholesome provision, designed to produce a speedy settlement of estates, and the repose of titles derived under persons who are dead. If this statute could be avoided by any fraud, (on which I give no opinion,) it must be a fraud of the executors or administrators themselves, and not of third persons, with whom they have no connexion or privity. There is no pretence of any such fraud in this case on their part, or the part of their testator. All of them are innocent, both in fact, and in construction of law. How, then, can the fraud of a third person avoid a plea of this nature? It is also material to state, that if fraud be set up to a bar of the statute, the fraud so operating should be stated in advance in the bill, as an avoidance of it, so that thereby the fact may be put in issue. It is not sufficient to prove such a fraud in evidence, for the decree must be not only secundum probata, but also secundum allegata. If the plea is nakedly pleaded, and the bill does not set up the fraud, to avoid it, nothing is in issue but the truth of the plea itself. If then the debt be barred, and is no charge on the executors, it can be no charge on the estate of the testator, either real or personal. It falls by its own infirmity, and attaches to nothing. If a testator charges his lands with payment of his debts, it is only with debts which are subsisting, and may be enforced against his estate, and not with debts not admitted, nor capable of being enforced against his assets. The trust is coextensive with the subsisting debts, and dies with them.7 7 Sce Burke vs. Jones, 2 Vez. & Beames, 275.-The Executors of Fergus vs. Gore, 1 Sch. & Lefr. 107, 109. Pratt et al. vs. Northam et al. I may add, that in Massachusetts, where a like statute exists, the uniform construction has been, that the lapse of the prescribed term extinguishes the debt, so that even a subsequent acknowledgment by the executor or administrator will not revive it. And in such case, a judgment against the administrator himself does not bind his sureties in a suit brought on the administration bond; but the extinction of the debt may be set up by them as a bar thereon. The obvious policy of the statute well war rants the conclusion indicated by these decisions. The Court has thus far travelled through the points made and argued at the bar. But if the difficulty last suggested were not insuperable, there would remain for consideration a very important point, and that is, whether all the proper parties for a decree are before the Court. The doubt with me is, whether there could be any decree, unless an administrator of R. M. Ambrose were before the Court. His accounts as guardian have never been adjusted; nor, so far as respects the assets now in controversy, has there been any allowance or settlement of the charges accruing from the getting in of those assets. Yet it is obvious, that no decree could be equitably had against the executors of Langley, except for such a balance as should be due them on a settlement of both of their accounts. The Court might, in consideration of the insolvency of R. M. Ambrose, and the want of an administration on his estate, get over the difficulty of refusing relief against a surety without bringing the principal before it, with a view to contribution over. But when it cannot render any just decree without the liquidation of demands, which cannot be brought before the Court, without an administrator being appointed, can it be, that it ought to render a decree against an innocent surety, which it has no means of ascertaining to be founded 8 Danes vs. Shaw, 15 Mass. R. 6.—Emerson vs. Thompson, 16 Mass. R. 429.-Thompson vs. Brown, 16 Mass. R. 172. Pratt et al. vs. Northam et al. either in law or equity? At present, the objection strikes me as very cogent, and well deserving of grave debate. Upon the whole the bill must be dismissed. Bill dismissed accordingly. JOHN RICHARDS AND OTHERS vs. RICHARD K. RANDOLPH. Under the statute of Rhode Island, for the conveyance of real estate, if there be a defective acknowledgement of the deed by which the title is intended to be conveyed, the deed is void, as to all persons except the parties and their heirs, and therefore a subsequent purchaser, for a valuable consideration, from the grantor, may acquire a good title thereto. EJECTMENT for land in Bristol, Rhode Island. Plea, the gen eral issue. At the trial, the plaintiffs, to support their action, offered a deed from George D'Wolf (who was admitted to be the then owner of the land) to them, dated the 9th of December, 1825, in Boston, in Massachusetts, and acknowledged on the same day before a magistrate there, but the acknowledgement was not under his seal, and recorded on the 10th of December 1825, in Bristol records. George D'Wolf, at the time of the execution of both deeds, was an inhabitant of Bristol. Randolph objected, that the deed was not effectual to convey the land, because the acknowledgment was not under the seal of the magistrate, as is required by the statute of Rhode Island, (Digest of 1822, p. 202.) He further offered, in support of his title, a subsequent deed of the premises from George D'Wolf to himself, executed in Bristol, on the 23d of February 1826, and duly acknowledged. It was a deed in trust for the benefit of certain creditors of the grantor. It was also admitted, that there was an attachment, by |