A. F. Woodard, special master. And the following reasons were assigned, viz:

1. The plea should have been ordered to stand, until the final hearing of the cause, and Shall could not be discharged under it if good, until the final hearing.

2. The order discharging Shall, on the plea, was prematurely made, and inadvertently entered, etc.

3. The plea presents no matter in bar of the suit, as against Shall, etc.

4. The order was made without due consideration, etc.

The court overruled the motion on the grounds that the order discharging Shall was a final decree in bar, upon plea, and that the decree had passed beyond the control of the court. The court proceeded to render a final decree, disposing of the cause as to the other parties.

The State appealed from the judgment of the court, refusing to set aside the decree discharging Shall, etc., as moved by the solicitor general.

The plea of Shall was in bar, and went to the whole bill, and the order of the court discharging him, was in form and effect a final decree,, as to him, and was doubtless intended so to be by the chancellor.

Whether the court would allow the plea at the time of the argument, or let it stand over to the final hearing of the cause, was a matter of practice. Story Eq. Pl., sec. 697; 2 Dan. Ch. Plead. & Prac., 799, 800.

It had the power to allow the plea at the argument, and to render a final decree discharging Shall, as it did; and after the lapse of the term, the decree passed beyond the control of the chancellor, as he correctly held, on the motion for rehearing, made on behalf of the State, several years after the decree was rendered. Brooks vs. Hanauer, 22 Ark., 176; Campbell vs. Garvin, 5 Ark., 455; Ashley vs. Hyde et al. 1 Eng., 101; Rawdon et al. vs. Rapley, 14 Ark., 203; Reif et al. vs. Conner, 5 Eng. 241; Hubbard vs. Welch,6 Eng., 151; Cossitt et al. vs. Biscoe, 7 Eng.

95; Mayor vs. Bullock, 1 Eng. 282; Miller vs. Hemphill, 4 Eng. 488.

The decree being final, the remedy of the State was to appeal therefrom, during the term of the court at which it was rendered, or to apply to this court, or one of its judges, within one year after the decree, for an order granting an appeal. Dig., ch. 28, sec. 146-7.

The court did not err in overruling the motion to set aside the decree, and for a re-hearing upon the plea, the motion being too late; and this disposes of the only question legitimately presented upon the appeal.

Affirmed.

Hon. H. F. FAIRCHILD did not sit in this case.

HILL EX. VS. THE STATE.

As upon the death of a trustee he ceases to be such, and as to him the trust is no longer continued, his indebtedness to the trust becomes a demand against his estate, to be authenticated, allowed, classed and paid out of the assets of his estate, as other demands.

The statute of non-claim is a bar to the claims of the State, if not exhibited within the time prescribed by the statute, as in the case of private individuals.

Appeal from Pulaski Chancery Court.

Hon. H. F. FAIRCHILD, Chancellor.

Mr. Chief Justice ENGLISH, delivered the opinion of the court. This case, like The State vs. Shall, ad., and Biscoe vs. The State, ante, is a branch of the suit of the State against the Trustees, etc., of the Real Estate Bank.

George Hill was one of the original Trustees under the deed of assignment; and was also one of the residuary Trustees, and continued to act as such until the time of his death, in January, 1849.

Having made a will, letters testamentary were granted to his widow, Nancy Hill, by the probate court of Hempstead county, 31st of March, 1849; and as his executrix she was made defendant to the bill filed by the State against the Trustees, etc., 1st of May, 1854.

In her answer, she pleaded the statute of non-claim, limitation, etc., and before, and at the time of the final hearing, she moved to be discharged upon these defences, but the court overruled the motions, and rendered a decree against her, as the representative of her deceased husband, for the sums mentioned below, and she appealed.

Hill was indebted to the bank, on stock notes and accommodation notes, before, and at the time of the deed of assignment; he made payments during his lifetime, and like Biscoe (see Biscoe vs. State, ante,) was credited with a salary of $750 per annum for his services as Trustee, instead of the per diem compensation provided for by the deed. At the time of his death, there was still a balance against him upon the books of the bank, as his account was stated by the cashier and secretary of the board of Trustees, which Mrs. Hill, as his executrix, subsequently fully paid off.

Upon a re-statement of his account, by a special master, under the directions of the chancellor, as in Biscoe's case, his estate was reported to be indebted to the trust in the sum of

$3,091 24, in money, and $1,837 87, in Arkansas bank paper or bonds, for which a decree was rendered against appellant, as executrix. A decree was also given against her for the sum of $2,365, in money, reported by another special master to whom the matter was referred, as being Hill's portion of the value of the Ferguson negroes, which were lost to the trust, the chancellor held, by the negligence of the Trustees.

It appears that Wm. D. Ferguson had made a mortgage to the bank upon lands and negroes, to secure debts due from him to the bank; the mortgage had been foreclosed, the property sold and purchased by the Trustees. On the 28th May, 1847, the Board of Trustees, (present, Biscoe, Hill, Faulkner and Walters,) made an order, upon application of Ferguson, that when he paid or secured $5,500 00, the value fixed upon the slaves, they would reconvey them to him. In the meantime the slaves were to remain in his possession, to be employed, fed, clothed, etc., by him, on condition that he did not remove them from the State. It seems that no further step was taken, by the Trustees, about the matter during their continuance in office. That Ferguson failed to secure or pay the value of the slaves, and that some time or other, whether before or after the death of Hill does not appear, ran them off to Tennessee, and they were lost to the trust.

It was agreed by the parties that there had been no authentication and presentation of the demands against Hill's estate, to his executrix, as required by the administration laws; and that if the statute of non-claim was applicable to this suit, the appellant should have been discharged.

The bill sought to recover against Hill's estate mere money demands. Upon his death, whatever trust property there may have been in his possession, passed, it must be supposed, in the absence of any showing to the contrary, into the hands of his survivors and successors in office. The decree against his executrix was for money demands, one of them arising upon a re-statement of his book account, and the other upon a valuation of trust property, supposed to have been lost to the trust, by the negligence of himself and his co-trustees, in leaving it

in the possession of Ferguson without security. These demands, if just claims against his estate at all, as we must suppose they were, existed at the time of his death, and were as capable of being asserted in a sworn bill brought within two years after the grant of letters testamentary to his executrix, as they were five years after by the bill then filed in this case.

In Walker as ad. vs. Byers, 14 Ark. 252, the court, by Mr. Justice SCOTT, said: "In this system, [meaning our administration system, upon which he was commenting,] two capital objects seem plainly in view from the various provisions for their attainment; first, that the estate of every deceased person, after death, shall immediately pass to the custody of the law, to be administered for the benefit of creditors, and after the satisfaction of all claims against it, that shall be presented within two years after the grant of letters testamentary, or administration, the residue shall in the next place be passed to the heir or distributee, quit of all claims against it which the law will allow of, as against an executor or administrator."

And after remarking upon the jurisdiction of the probate court, and its mode of dealing with estates, the Judge continues thus: "In such a system, with a tribunal thus constituted, as its effective instrument, we think it clear that the claims and demands which the statute contemplates shall be exhibited to the executor or administrator in the manner provided by the statute, before the end of two years from the granting of letters, on pain of being forever barred, are all claims capable of being asserted in any court of justice, either of law or equity, existing at the time of the death of the deceased, or coming into existence at any time after the death, and before the expiration of two years-including, of course, all claims, or demands, running to certain maturity, although not yet payable, to be adjusted presently, upon equitable principles of discount, according to the rate of interest when matured, or to be provided for at the day of maturity without discount, and excluding such claims only as might be inchoate and contingent, like that in the case of Burton vs. Lockhart, (4 Eng. R. 412,) and like dor