#### Lionel H. Kennedy, Executor of J. H. Stevens, v. B. P. Simons and Wife, and Charles Furman.

Where a creditor applies for the aid of the Court of Equity against an equitable interest of his debtor, it is incumbent upon him to shew that he has pursued his legal remedy to every available extent, and has failed' — the more allegation and proof of insolvency are not sufficient; it must be shewn that the legal remedies have been exhausted.

*Before Ids Honor Chancellor JOHNSON, at Charleston,*1836.

The foundation of this suit was a common penal bond conditioned for the payment of money, entered into by the defendant, Mrs. Simons, before her intermarriage with defendant, B. P. Simons, and her deceased father, John Lloyd, to the complainant’s testator, and it was objected that the complainant was not entitled to relief in equity, because he had an ample remedy at law. The grounds of equity stated were, that John Lloyd, one of the obligors, died insolvent, and that defendant, B. P. Simons, was also insolvent; but that the defendant, Furman, was in possession of a fund which he held in trust for the use of the defendant, Mrs. Simons, and which complainant prayed might be subjected to the payment of his demand. ' *>*

The answer of the defendants admitted that Furman was in possession of a fund, consisting in its present form, of an old negro of little value, and two shares in the South Carolina Bank, estimated at $120, which, according to the terms of a deed of trust, executed by John Webb to William Webb and Francis Simons in 1198, he held in trust to pay the annual “interests, rents and profits, income and produce arising therefrom, to the defendant, Mrs. Simons,” for her own proper use and benefit, during her life, and at her death, to her husband, if he should survive, for life, and after his death, to the children of the said Mrs. Lloyd. The defendant, Furman, was also in possession of another fund, as trustee, derived from a deed executed by Mary Lloyd to William Logan, dated in 1818, which was limited over to defendant, Mrs. Simons, on the event of her surviving her mother, but in which she had no present interest; *142and it was conceded that the complainant' had no claim on this fund, the contingency not having happened.

His Honor, the Chancellor decreed as follows:

It is generally true that equity will not afford relief to a complainant who has a plain and adequate remedy at law; nor is the circumstance that a debtor has no other assets than choses in action, which cannot be reached by the ordinary process at law at the suit of his creditor, in general a ground of equity jurisdiction; because by arresting the body of the debtor, the creditor may drive him to the necessity of submitting to perpetual imprisonment, or discovering and assigning his choses in action, precisely to the same extent that he could in this court. But the prevention of a circuity and multiplicity of actions is a ground of equity jurisdiction, and it is certainly a good ground of jurisdiction, that the object of the suit cannot be obtained without the aid of the court although a court of law might supply some of the intermediate remedies. This case itself may serve as an illustration of the rule. If the complainant had brought an action at law on the bond, and upon a recovery, had arrested the defendant, B. P. Simons *on*a *ca. sa.*and he had applied for the benefit of the insolvent debtor’s law, he would have been obliged to discover his interest in this fund and assign it for the benefit of his creditors; but besides the circuity and multiplicity of actions, the defendant, Furman, as trustee, is only amenable to this court, and the assignment would have been unavailing without its aid. I think, therefore, that the case is properly in court. As to the merits, the defence is jiayment, and to support it, the defendants rely mainly on lapse of *time.*

The bond is dated 20th August, 1814, and is payable or due 1st June, 1815. These proceedings were commenced on the 5th September, 1833, so that only eighteen years and a little more than three months intervened between the time when the bond fell due and the commencement of the suit. It was also in evidence that all the parties lived in this city, and the complainant’s testator was the collector of military fines for two of the regiments of militia, and that he employed John Lloyd, one of the obligors, as his deputy or assistant, and allowed him about one dollar on each *143execution; and from it, is inferred that there were frequent settlements between them; but on the other hand it is proved that they were on terms of constant friendship and intimacy, and that Lloyd was always necessitous and died insolvent.

The rule is that tho lapse of twenty years, but no period short of that, will of itself be sufficient to authorize the presumption of payment — payment, however, may be presumed within a shorter period, when other circumstances combine with lapse ef time in aid of the presumption; but what shall be the lapse of time, and what the circumstances, is not from its nature reducible to any rule — ■ each case must depend on its own circumstances; this combination must, however, produce in the mind a reasonable belief that the debt is paid. The settlement of other accounts between the parties, without reference to the subject oflitigation, is usually put as-an illustration of this modification of the rule, and unrebutted, would, after a considerable lapse of time, though short of twenty years, be a very imposing circumstance. It does not strike me, however, that the relation of principal and deputy collector of fines, did necessarily involve the formal settlement of the private accounts between these parties. As the deputy, the duty imposed on John Lloyd was limited; as collecting the fines and paying them over to his principal, or other person authorized to receive them, retaining what was allowed him for his own services, and these being public funds, the payment of them to complainant’s testator furnishes no presumption that he also paid his private debts. The continued necessity and insolvency of John Lloyd, and the intimacy and friendship between himself and complainant’s testator and his retaining the bond, outweigh, in my judgment, the presumption arising from the combination of the lapse of time, and the circumstances relied on in aid of it. The complainant is therefore entitled to judgment for the penalty of the bond, the interest having already greatly exceeded it.

It is therefore ordered and decreed, that the defendant, B. P, Simons, and his wife Eliza Simons, do pay to the complainant two hundred and seventy-four dollars and fifty-six cents, the amount of the penalty of the bond, and the cost of suit; and in default of payment thereof, on notice of this decree, it is further ordered that the *144defendant, Charles Furman, do deliver up to the proper officer of this court the negro described and referred to in the pleadings, to be sold for the joint lives of the said B. P. Simons and wife and the survivor of them, and that he account with the said officer, for all sums which he may from time to time receive, as dividends arising from the two shares of stock of the Bank of South Carolina, as soon and as often as he may receive the same, during the joint lives of the said B. P. Simons and his said wife and the survivor of them, and that the costs of the said Charles Furman be first paid out of the proceeds of the sale of the said negro, and the dividends of the said bank shares; and the residue and remainder to the complainant.

From this decree the defendants appealed, on the grounds referred to in the decree of the Chancellor.

*Peronneau, Mazyeh*§• *Finley,*appellants’ solicitors.

*Yeadon*& *M‘Beth,*contra.

Dunkin, Ch.

The facts of this case are set forth in the petition — the bill was sustained; and one of the grounds of appeal made by the defendant was, that the complainant had a plain and adequate remedy at law. It is said in Perry v. Nixon, (1 Hill Ch. R. 336,) that “before a creditor seeking relief touching the personal assets of his debtor, can come into this Court, he must shew not only the judgment and execution, but that he has pursued his execution at law to every available extent.” The authorities cited are, Brinckenhoff v. Brown, (4 John. C. R. 676,) and Scriven v. Bostwick, (2 M'Cord C. R. 416;) and in the former case Chancellor Kent speaks of this as the settled rule in chancery. In M'Dermutt v. Strong, (4 John. C. R. 691,) the Court again say the law is “clearly settled, that before a judgment creditor can come here for aid, against the goods and chattels of his debtor, or against any equitable interest which he may have therein, he must first take out execution, and cause it to be levied or returned, so as to shew thereby that his remedy at law fails, and that he has also acquired *145by that act ofdiligónce, 'a legal preference to the debtors iútérest.” In the case under consideration, it was incumbent on the complainant to show that he had pursued his legal remedy, and he had failed, and that he bad also acquired by that act of diligence, a legal preference to the debtor’s interest; this not having been done, it seems to the Court, that the bill should have been dismissed, and it is so ordered.

Johnston, Ch.

I concur in the result; the bill was insufficient in not alleging that the wife had no other property. She might have had real estate, and the husband’s interest in that might have been subjected to the law; but I do hot think the case of Brickenhoff v. Brown ought to be applied in this case. Neither do I think the point ruled was a necessary point, or decided by Scriven v. Bostick, or Perry v. Nixon. I think an allegation and proof of insolvency in such cases is as good as the exhaustion of legal remedies.