#### *Atkinson v. Robinson.

April, 1838,

Richmond.

Chancery Practice — Claim lor Equitable Relie! Should Be Exhibited within Reasonable Time,* — Every claimant who asks relief of a court of equity ought to exhibit his claim within a reasonable time, so that, in giving him a decree the court may not do injustice to the defendant.

*145Same — Lapse *of*Time — Case at Bar. — Bill in equity dismissed, because amount remaining' due to complainant was uncertain, and conld only be ascertained by a settlement of accounts in reference to transactions more than twenty-seven years old at tbe commencement of the suit.

Appeal from a decree of the superiour court of chancery formerly holden for the Richmond district.

On the 23d of April 1798, judgment was obtained in the district court holden at King and Queen courthouse, by Thomas Smart for the benefit of Buchanan & Young, against William Robinson and Beverley Robinson, for £1564. and costs, to be discharged by the payment of £782. with interest from the 8th of October 1796 till paid, and the costs. Beverley Robinson being taken in execution upon a judgment obtained by one Thomas Southcombe, as well as upon Smart’s judgment, was, on the 26th of May 1798, brought before two justices of the peace, and thereupon subscribed and delivered in a schedule of his estate, took the oath of an insolvent debtor, and was discharged out of custody. William Robinson being afterwards taken in execution upon the same judgments, was discharged in like manner on the 18th of April 1799. The bill in this case was not filed until the 8th of May 1827.

It was exhibited by Joseph Atkinson junior, as surviving partner of Atkinson & Co. and claimed that Buchanan & Young had assigned to Atkinson & Co. the debt due from William and Beverley ’ Robinson. After setting forth the nature of the property contained in the schedules, it stated, that property of William Robinson in Berkeley ’^county was disposed of by the sheriff of that county, and produced the net sum of £323. 6. 6. which was paid by the sheriff to Southcombe ; that the sheriff of King and Queen county sold merchandise mentioned in the schedule of Beverley Robinson, and undertook the collection of the debts specified therein ; that some of those debts were collected by the sheriff, and money was paid over by him from time to time to James Webb esq. who was the attorney that recovered both judgments, Southcombe’s as well as Smart’s; that Thomas C. Morton filled the office of sheriff of King and Queen county at the time of these transactions, and had died without settling any account of the same, leaving Walker Hawes his executor ; that the mother of William and Beverley Robinson, who was tenant for life of certain slaves mentioned in the schedules, died a short time after they took the oath of insolvency, and Beverley Robinson took possession of the said slaves and their increase j that he also took an active agency in the collection of the debts and in the management of the whole fund, with the professed intent of paying the debts for which he and his brother had been taken in execution, from funds other than the slaves, and of saving them for himself ; that he moreover sold a slave named James, mentioned in his schedule ; that having converted to his own use most of the property of which he had rendered a schedule, he often promised mr. Webb, and other agents of the judgment creditors, that he would pay the balance of their debts. The bill farther alleged, that after taking the insolvent debtor’s oath, Beverley Robinson acquired ether property, real and personal, which would have enabled him to pay the said debts; but by his frequent promises, continued till the latter days of his life, prevented the attorney and other agents of the creditors from taking steps, by scire facias or otherwise, to procure satisfaction of the debts. He died, it was stated, in 1825, possessed of seven slaves ^mentioned in the schedules, with their increase, which was considerable, and of other valuable property, real and personal, having made a will whereof he appointed Robert Pollard and Thomas W. New his executors, who qualified as such, and immediately received notice of the judgments, and of the fact of their being unsatisfied. The bill further alleged, that under an impression that the execution in favour of Southcombe had preference over that in favour of Smart, the attorney mr. Webb had paid the money which he received to Southcombe, whereas the whole proceeds of the fund arising from the schedules should, as the plaintiff contended, have been applied ratably to the discharge of the two judgments. After making the proper defendants, the prayer was that Hawes the executor of Morton might be compelled to settle an account of his transactions as sheriff, ascertaining what moneys he had collected, and what he had paid over in satisfaction of the executions or either of them, and pay any balance for which he might be liable ; that whatever might be yet due on the judgment of Smart might be paid out of such funds in the hands of Hawes the executor of Morton, and of the representatives of Beverley Robinson, as might be justly chargeable therewith ; and that Southcombe might be compelled to pay to the plaintiff a due proportion of the money received by him on tbe transactions aforesaid.

Several of the defendants answered the bill. Amongst other grounds taken in the answers, the value of the property delivered up in the schedules, and the lapse of time since the property was surrendered, were relied on as reasons for presuming satisfaction, or at least as furnishing sufficient cause for not decreeing in favour of the plaintiff. Depositions were taken in the cause, and *146■exhibits filed ; but it is not material to state their purport.

*On the 4th of February 1831, the court of chancery pronounced its opinion, that if the schedules of William and Beverley Robinson had been duly attended to by the plaintiff, or those representing him, he might have received payment of the judgment mentioned in his bill, or at least the parties concerned might be better enabled to account for various matters relating thereto than they are at present, which matters, if they could be accurately stated at this distance of time, might satisfactorily shew that the debt was satisfied: Wherefore the court . decreed that the bill of the plaintiff be dismissed, and that he pay to the defendants their costs. Erom this decree the plaintiff appealed.

Johnson for the appellant.

Daniel and Carter for the appellees.

*

Chancery Practice — Claims *for*Equitable Relief Should Be Exhibited within Reasonable Time. — As holding that every claimant who asks relief of equity ought to exhibit his claim within a reasonable time, so that, in giving him a decree, the court may not do injustice to the defendant, the principal case was cited in Etting v. Marx, 4 Fed. 683 ; Caruthers v. Trustees, 12 Leigh 618. See also, Smith v. Thompson, 7 Gratt. 112.

Same — Laches.—A court of equity, which is never active in relief against conscience, or public convenience, has always refused its aid to stale demands, where the party has slept upon his right, and acquiesced for a great length of time. Nothing *145can call forth this court Into activity hut conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced. As recognizing and acting on this doctrine, the principal case is cited in Doggett v. Helm. 17 Gratt. 96, 97, and *foot-note*(many cases in point are collected in this *.foot-note)*; Foster v. Rison. 17 Gratt. 348 ; Green v. Thompson, 84 Va. 396, 5 S. E. Rep. 507. citing also Hayes v. Goode, 7 Leigh 487; Caruthers v. Trustees, 12 Leigh 619; Carr v. Chapman, 5 Leigh 176; Stamper v. Garnett, 31 Gratt. 564; Hatcher v. Hall. 77 Va. 576; Harrison v. Gibson, 23 Gratt. 212, and Hill v. Umberger, 77 Va. 653. See further, monographic *note*on “Laches” appended to Peers v. Barnett, 12 Gratt. 410.

PER CURIAM.

We are of opinion to affirm the decree. Without entering into a detail of the many grounds on which the court properly dismissed the bill, it suffices to say, that even if it were clearly proved that the decedent Beverley Robinson had, in the last hours of his life, acknowledged that the debt to Smart, which the complainant claimed, had not been fully discharged, yet the amount remaining due was uncertain, and could only be ascertained by a settlement of accounts in reference to transactions more than twenty-seven years old at the commencement of this suit, and now of more than thirty-seven years standing. Such an account ought not to be decreed ; for every claimant who asks the relief of a court of equity ought to exhibit his claim within reasonable time, so that, in giving him a decree, the court may not do injustice to the defendant. _•