Where 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.
BATTLE, 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, has a right under the order of the court of equity, by which he was appointed, to sue 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 Ligon v. Dunn, 28 N.C. 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 his debt a second time because the executor has either wasted or misapplied the money collected on the debt. The demurrer must be sustained.
PER CURIAM. Bill dismissed.
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