Page:Federal Reporter, 1st Series, Volume 5.djvu/481

 HOWABDS V. BELDBN. 469 �of Turpin weie allowed to recover from the estates of Henry Gordon and of his sureties (iacluding' Stringer) the sums which had been decreed to the Howards, and also to Cocke's estate, out of the proceeds of the sale of the real estate of William A. Turpin, deceased. �And now, Ed. S. Brown, executor of Stringer, cornes into court, praying that the decree of October 29, 1879, be set aside, and he be admitted to make defence against the petition of Turpin's devisees. The said decree is accordingly set aside by consent; and the said Brown, being admitted to make defence and proceeding so to do, maintains that the prayet of the petition of the Turpins ought not to be allowed for the foUowing reasons: First. The cause of action, asserted by the Howards and by the Turpins, arose before the third of March, 1848, and is therefore barred by the statutes of Vir- ginia, which limit the liability of fiduciaries in such cases to 10 years after the cause of action arose. Second. It was nôt competent for the complainants in the suit (the Howards) to maintain a suit to recover in favor of the estate of John li.' Cocke, because there was no privity of contract between thë legatees of St. John and John L. Cocke, deceased. The heirs and distributees of Cocke, being residents in Virginia, canndt maintain a suit in this court, still less such a claim against their codefendanta. Third. The estate of Charles Selden is aolvent, and the remedy for payment coerced from his surety (Turpin) is against his estate. Fourth. The money decreed to the heirs of John L. Cocke is the proceeds of the execution of Lancaster & Denby, for Cocke's benefit, issued in 1851 to Henry Gordon, as deputy sheriff of Christian Cocke, which was not returned until after Gordon had become insolvent and had been sued by Selden, the liability for this money being on the eureties of Gordon as deputy of Chastain Cocke. Fifth. The plaintiffs in this suit, not being parties to the suit in the cir- cuit court of Powhatan, are not bound by and can claim no benefit against said Gordon and his sureties from that suit. Sixth. The whole subject-matter was under adjudication in the circuit court of Powhatan county before the institution of this suit in the United States court, and it is not com- ����