A majority of the court are of the opinion that the judgment of the lower court should not be disturbed, except so far as to amend the same by rejecting the payment of $2000 alleged to have been made to the Planters’ Bank.
The principal contest has arisen out of the construction of the statute of Mississippi, which declares that no action of debt shall be instituted on a judgment after the expiration of seven years after the date of said judgment. It is contended in this court, on the one hand, that this statute bars the right, and consequently can be invoked everywhere; on the other hand, that it is but a statute of limitations, and bars the remedy only. We think the latter opinion is so well established by authority, in which our own courts and the Court of the United States concur, that it ought not to he disturbed by us. It is well settled, both by the Civil and the Common Law, that a judgment gives rise to an action to enforce it. Whenever this action.is brought, it is subject to the law of the forum, and the prescription of the forum alone will bar such action. 3 Zacharie, p. 373, No. 769: JDeseffeis de la chose jvgée; 2 Savigny, 246-248; 13 Peters’ R., 324, 328; McElmoyle v. Cohen, 7 N. S.. 108 ; Union Cotton Co. v. Lobdell, 3 An., 220; Lacoste v. Benton, 7 An., 600 ; Bacon v. Dahlgreen, 7 An., 272; Taylor & Hadden v. Joor.
It appears that Gen. Sparrmo administered the estate, in his capacity both of tutor and curator. Many of his vouchers state that the money was received of him as tutor, others that it was received of him as tutor and curator, and others as curator only. Ashe had the capacity to administer the estate in both capaci-cities, a majority of the court think that any payment made by him on account of the estate interrupted prescription, and that the ■ payment by him of the notes held by the Bank of the United States had the effect of interrupting prescription upon them.
We have been unable to discover any evidence of the payment of the $2000 to the Planters, Bank, and we are unanimously of the opinion that the judgment must be amended in this particular, as prayed for.
It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be so amended as to direct and order that H. D. Mandeville, *759John W. Walworth and the Montgomery trustees of the Planters’ Bank of Mississippi he placed upon said tableau of distribution for their judgment of $3199 74, with 8 per cent, interest thereon per annum, from the Oth day of December, 1836, until paid, payable in the money of said Planters’ Bank; and it is further ordered, adjudged and decreed, that the judgment of the lower court he, in all other respects, affirmed; and it is further ordered, that the cost of this appeal be divided equally between and paid by the succession of John Ditcher, Horatio B. Pennoch, S. W. Oákey and Maria Boulden.