Page:Federal Reporter, 1st Series, Volume 10.djvu/86

 74 FEDERAL BBPOBTER. �relief where additional circumstances constitute sufficient grounds for interposition, and always where there is encouragement, misrepre- sentation, or ignorance taken advantage of by the party receiving the payment. Bisph. Eq. § 188. Whether the facts here would be held to show a mistaks of law as to the legal effect of the supposed request for delay, or of facts as to the existence of a valid request, would be a nice question if it were necessary to decide it. But, on all the above authorities, an agent or attorney employed to manage his client's affairs, who, whether by ignorance or design, leads that client to sup- pose that, as a matter of law, he can safely make a payment to him- self, cannot relieve himself from liability to refund on the ground that there has been a voluntary payment made under a mutual mis- take of law. �The executer here had a right to a correct judgment from Joel L. Pulliam on that question, and he cannot protect himself against an erroneous judgment on sueh a ground. In Lupton v. Lupton, 2 Johns. Ch. 626, it was ruled that a legatee receiving more than his share must refund in favor of others. David v. Frowd, 1 Myl. & K. 200; Williams v. Gibbes, 17 How, 239, 255 ; 2 Williams, Ex'rs, 1244 ; Orr v. Kaines, 2 Ves. Sr. 194. It was ruled in Johnson v. Moseby, (MSS. opinion, Knoxville, Sept. 1880,) 1 South. Law J. (N. S.) 802, that a crediter who, without an iudemnity bond, received more than his share, could not upou subsequent insolvency, at the instance of other creditors, be oompelled to refund the exeess over his pro rata; while in Ewing v. Morey, 3 Lea. 381, where, in insolvency proceedings, a crediter received more than his share, he was held to be a trustee as to the excesB for the others. But in these cases there was a valid and subsisting claim; here there was no valid claim, but, on the contrary, one that was extinguished. The distinction is obvions. Nor need I conaider the question whether the debt was really extin- guished or remained so far obligatory that it would support a pay- ment. There is undoubtedly a principle (and it was that misled me at the former hearing) that a debt barred by the statute of lim- itations or discharged in bankruptcy, will, nevertheless, support a pay- ment, or a new promise to pay, after the bar has attached or the discharge has taken eflfect. But this must be confined to the ordi- nary statute of limitations, and cannot be said of the statutes in favor of dead men's estates. As to a new promise to pay, the execu- ter or administrator cannot make a valid one after the bar of these statutes has attached, and it is settled that he cannot waive this statute, while he may the ordinary statute of limitations. Batson v. ��� �