J. M. Mattingly and Sarah Ann His Wife, Appellants v. John H. Boyd

Mr. Robinson made the following points: I. That if, when this suit was brought, Bylen had been alive and a citizen of Tennessee, and a party defendant, the plaintiff would not have been barred from proceeding against him by the statute of 21, Jac. 1, ch. 16, sec. 3, or by the Tennessee statute of 1715 taken from it, or by any other statute of that State. 1. Because, by the appointment of Bylen as guardian, an express trust was created, and the statute of limitations is no bar in the case of such express trust. (Pinkerton, &c., v. Walker and wife, 3 Hay., 221-'2; Bryant v. Pucket, ib., 252-'3; Parson, &c., v. Ivey, 1 Yer., 297; Armstrong v. Campbell, 3 Yer., 201; McDonald v. McDonald, 8 ib., 148; Smart and wife v. Waterhouse, 10 ib., 104; Porter v. Porter, 3 Humph., 586.) 2. Because the statute of 1715 does not bar actions of debt generally, but those only which are brought for arrearages for rent; (Kirkman v. Hamilton, &c., 6 Pet., 23; Tisdale v. Munroe, 3 Yer., 222;) and even if the plaintiff came within the 5th section, she comes within the disabilities provided for by the 9th section. 3. Because no statute of limitations in force in Tennessee bars an action on a specialty; neither such as Bylen gave when he qualified as guardian, nor such as was taken under the decrees of the Court of Chancery at Richmond. (Lawrence v. Bridleman, 7 Yer., 107; Hay v. Lea, 8 ib., 89; Rice v. Alley, 1 Sneed, 52;) and even if there were any statute of Tennessee prescribing a certain term of years within which an action must be commenced on such a bond as that, (pp. 36-'7,) the defendant does not show that such term of years has elapsed since the plaintiff married or attained the age of twenty-one years.