#### W. G. CURTIS, *Receiver, against*THOMAS C. McILHENNY.

ÍVhcro a bond, payable to a testator, was, by an order of the Court of Equity, taken out of the hands of the executor, and committed to a receiver, for collection, it was *Held,*not to be a ground for suing in a court of equity., that the defendants were setting up acceptances,, made by them of bills drawn by the executor, as payments to the executor by agreement with him, since- the question can be fully tried in a court of law.

Cause removed from the Court of Equity of Brunswick comity.

On the first day of January, 1855, Thomas C. Mcllhenny, with E. B, Dudley and Thomas Cowan, as sureties, executed a bond in favor of S. B. Everett, for $5000, for value received, payable to the said Everett, with interest from date. Everett died in the year 1855, leaving a last will and testament, with Samuel- Langdon, executor of the sanie. Some time during the year, 1858, Langdon was removed from the office of executor of the will ©f S. B. Everett, and the plaintiff, Curtis, clerk and master of the county of Brunswick, appointed- receiver of the estate. Curtis applied to Mcllhenny and-his sureties to have this bond satisfied, which they refused to do-,_ alleging that a large portion of it had been; paid off by accepting bills drawn on said Mcllhenny by Langdon, whilst acting-as executor, and accepted by McBlienny, in consideration of the bond aforesaid. In reference to the bills of exchange, the-bill states, that Langdon, after entering upon the .execution of the will, employed óne B-. D. Worrell to build a house for the benefit of the estate; that in so doing, he-transcended the limits of the power conferred oil him by the will, and greatly impaired the estate; that in payment for this work, the executor Langdon, drew a bill of exchange on Mcllhenny in favor of B. D. Worrell, for more than eight hundred dollars, with an understanding between the said Langdon and Mcll-henny, that the payment of the bills should be a payment on the bond. There were other bills of exchange drawn by Langdon, in favor of one L. P, Ivey, upon defendant, Mcll-henny, and accepted by him, with a like understanding, between them as to the bond.

*291When Curtis was appointed receiver, he gave notice to Me* IKhenny not to pay the bond to Langdon, and not to pay any ■order that he had made or might make. The defendant, Mc-llhenny, did not pay the orders, but contends that the acceptance of them is a payment to that amount. The bill prays a decree for the payment of the whole amount of the -bond. — - Defendant demurred.

*B~*'£?. Haywood, for the plaintiff.

No counsel for the defendant.

Rattle, J.

We are unable to discover any .principle upon which the bill can be sustained. The plaintiff, as receiver of the estate of S. B. Everett, deceased, lias a right, unefysr the order of the Court of Equity, by which he was appointed, to sne at law in the name of the executor upon the bond mentioned in the. pleadings; 3 Dan. Ch. Prac. 1991, and if the bills of exchange, drawn by the executor, and accepted by the principal obligor, are not payments, he will of course recover the whole amount of the principal and interest of the bond, without any deduction. But, if those bills of exchange are legal .payments, as from the case of *Ligon*v. *Dunn,*6 Ire. Rep. 133, it seems they are, then the plaintiff certainly cannot at law, recover the amounts of them again ; nor can we conceive any good reason why he should be allowed to recover them in equity. No collusion is alleged to have existed between the debtor and the executor, for the purpose of defrauding the estate of the testator, and it is a new idea that the debtor should be compelled to pay bis debt a second lime 'because the executor lias either wasted or misapplied the money collected on the debt. The demurrer must be sustained-

Per CueiaM, Bill dismissed.'