Page:Federal Reporter, 1st Series, Volume 10.djvu/87

 PULLIAM V. PULLIAM. 75 �Murrell, 10 Humph. 301; Brown y. Porter, 7 Humph. 373; Byrn v. Fleming, 3 Head, 658; Wliarton t. Marberry, 3 Sneed, 603; Wool- dridge v. Page, 9 Bax. 325; Woodfin v. Anderson, 2 Tenn. Cli. 331. �Now, if the executer cannot waive this statute, or make a new prom- ise, how can it be said that an actual payment may be made. Or, rather, if the crediter could not sue upon and maintain a new promise to pay, how can he support an actual payment ? It is con- ceded the executor is liable, because there is no obligation on him to pay, and he cannot do it without a breach of trust. No more can the crediter legally receive it. In the case of the ordinary statute the debtor may pay, or promise' to pay, and even an executor may do it and the law protect both. But if the doctrine contended for by the defendants is sound in this case, the man who pays must lose, while he who receives may gain by retaining that which belongs to an- other ; if it is wrong to pay, it is wrong to receive. Nor do I think it depends, even in the case of the ordinary statute of limitations, upon any distinction as to whether the effect of the statute is to extinguish the debt or only bar the remedy. Whether the particular statute does one or the other is a question of construction ; whether the Ten- nessee statute does the one or the other need not be determined here. A discharge in bankruptcy effectually extinguishes a debt, and yet it will support a new promise, or an actual payment ; because while a man lives there is a moral obligation on him to pay his debts, whether the legal obligation be extinguished or only barred, and in that sense the debt is never extinguished. But non constat that this is so when a man is dead; that moral obligation perishes with him, and survives neither to his executer nor his heir as a matter of law, though he may, by will, confer it on them. Anciently his property went to the first taker, or was absorbed by the church for pious uses ; but the law-making power iuterfered, and by statute imposed on his property a trust for the benefit of his creditors. In this view the proceedings to recover the debt are, in a large sense, proceedings in rem against the property. It bas never been denied that the legis- lature may attach such conditions as it chooses te this trust. �These statutes attach a condition precedent that the crediter must proceed within twe or three years, as the case may be, to enforce his claim. If he does not, the heir or legatee takes the property abso- lutely discharged of all further trust for the benefit of the creditors, and may follow it into whosesoever hands it goes. It does not matter that the person in possession once had a trust upon it; if that trust no longer exists he cannot keep it. ��� �