
    William Payne, Executor of John Payne v. William Dudley Executor of Fleet.
    October Term, 1793.
    Equity Practice — When Plaintiff Will Not Be Deprived of Advantage at Law.- — Courts of Equity never interfere to deprive the plaintiff at law, of a legal advantage which he may have gained, unless the party, seeking relief, will do complete Justice, by paying what is really due,' Upon the same principle, that Court has refused its aid in relieving against a judgment obtained by fraud,
    insolvent Debtors — Property Acquired after Discharge —Liability.—The property of an insolvent debtor afterwards acquired, is not exempted from the payment of prior debts: it is his person only which is protected.
    This was an appeal from a decree of the High Court of Chancery. The appellant filed his bill in that Court, stating, that his testator was indebted to the testator of the appellee by bond, upon which a judgment had been obtained in the year 1766, during the lives of the parties. That the bond, *being after-wards found by the defendant amongst the papers of his testator, the defendant had instituted an action upon the same bond, against the plaintiff, in a different court from that in which the original judgment had been obtained: that the plaintiff, not knowing of this judgment, was prevented from pleading it in bar, in consequence of which, a second judgment was rendered in the year 1789, against the plaintiff. The ground of equity is, that the testator of the plaintiff had, in the year 1766, conveyed the greatest part of his property to John Semple, in trust for the payment of the debt in question, (amongst many others,) provided, the enumerated creditors would within a reasonable time accede to, and accept of that security. That Fleet was one of the acceding creditors, and had been fully satisfied for the above mentioned debt out of the trust estate. An injunction was prayed for and granted.
    
      The defendant in his answer, denied any knowledge of the judgment in 1765, or that the debt had been satisfied either by Payne himself, or by Semple out of the trust estate; and insists, that the debt (for which the judgment sought to be injoined was rendered) being y.et due and unpaid, it ought now to be satisfied by the plaintiff, whether Eleet was, or was not an acceding creditor.
    The judgment in 1766 was entered upon confession ; no declaration or bond was filed, and consequently, it was entered generally, without ascertaining any precise sum.
    The Chancellor upon a hearing of the cause, dismissed the bill, being of opinion, that the equity stated, was neither admitted by the answer, nor supported by the evidence.
    Campbell for the appellant.
    I am aware of an objection, which may be urged against the relief sought for by this bill; which is, that the defendant at law, having lost the opportunity of availing himself of a legal advantage, cannot expect the favor of a Court of Equity, unless he shew, that the judgment is an unconscientious one. But it should be observed, that this legal advantage being gained, (and that too by the ignorance of the appellant) he has lost the opportunity of availing himself of the presumption, that the first judgment (obtained so long ago as the year 1766) had been paid; a defence which he might safely have used if instead of improperly instituting a second suit upon the same bond, a sci. fa. had been prosecuted to revive that judgment. The presumption arising from length of time, is much stronger against a judgment, than against a bond; for in the first case, a sci. fa. cannot be sued x'out after 7 years, but by permission of the court. There are strong circumstances in this cause to strengthen the presumption. On the day when the first judgment was to be confessed, Payne executed a deed of trust, conveying his property to Semple, to secure such of his creditors as should accede thereto. That Eleet was one of the acceding creditors, appears from the circumstance of one of his sons being found in possession of a part of trust estate ; after which it does not appear, that any demand of payment was made.
    Marshall for the appellee.
    The principle stated and admitted by Mr. Campbell, furnishes a coinpleat answer to all the objections relied upon ; for it is clear, that where a man has neglected to avail himself of an advantage merely legal, equity will not assist him, so as to defeat the justice of the case. Eleet by receiving part of the trust estate, is not thereby barred from recovering the balance of his debt, if other property can be found. It is like the case of a mortgagee, who if not fully satisfied by the sale of the property mortgaged, may proceed to recover the balance from the mortgagor.
    
      
      Equity Practice — When Plaintiff Will Not Be Deprived of Advantage Obtained at Law. — The principal case is cited in Lipscomb v. Littlepage, 1 Hen. & M. 467, to the point that courts of equity will not interfere to deprive a plaintiff at law of any legal advantage which he may have gained, unless the party seeking relief will do complete justice by paying what is really due; and they have upon the same principle refused to relieve against a judgment obtained by fraud. See monographic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   LYONS J.

in case of a foreclosure, how would it be, if there were no covenant for payment of the debt.

Marshall. In that case, the mortgagee must be satisfied with the security he has taken; but he may elect to have the property sold, iri which case, he may proceed against the mortgagor for the balance left unsatisfied by the mortgaged property.

As to the presumption of payment, it was a fit subject to have been relied upon at law. But surely it cannot be seriously contended, that the acceding creditors are precluded from claiming such part of their debts, as remained unsatisfied under the trust.

The PRESIDENT.

The presumption of payment arising from length of time, besides being defeated by the acknowledgments of the debtor in 1775 and 1779, is sufficiently repelled, by considering the delay necessarily incurred, ■ whilst the creditor was waiting to see what the trust estate would produce. The creditors are not barred, by the terms on which they acceded to the deed of trust, from demanding any balance not satisfied under the trust — nor does it even appear, that the debtor had a letter of license, which on such occasions is generally given.

It never was supposed, that the property of an insolvent debtor, acquired after his discharge, was exempted from the claims of his creditors, until the debts before contracted were fully satisfied. It is his person only, which is protected.

fWe come now to consider, the nature and extent of the relief sought for. Courts of Equity never interfere, to deprive the plaintiff )at law, of any legal advantage which he may have gained, unless the party, seeking relief, will do corn-pleat justice by paying what is really duel Indeed, they have (upon the same principle, ) gone so far as to refuse their assistance, in relieving against a judgment, obtained by fraud.

The trust deed furnishes no equitable bar to the creditor, since he has waited, to know the result of that fund, as long as could have been expected. If Payne’s executor had supposed, that a balance of the trust property were still remaining unapplied, he might have made the representatives of the trustees parties, and called for an account.

Decree affirmed.  