Hewlett v. Hewlett , 4 Edw. Ch. 7 ( 1839 )

The Vice-Chancellor :

The amount of the defendant’s indebtedness to C. & N. Hewlett, as evidenced by the list of his debts in his own handwriting, and by the note and draft of the twenty-sixth day of October, one thousand eight hundred and eighteen, which were in the possession of Charles Hewlett, the intestate, at the time of his death, are more than sufficient to absorb the whole amount of the two bonds, payable by Charles Hewlett, at the death of Martha Hewlett, which took place in the year one thousand eight hundred and twenty-nine, there being no interest accruing on the bonds during her lifetime. Taking the note and the draft as the basis of calculation, namely, five hundred and ten dollars, which the defendant admits he owed to Newberry Hewlett, and which he does not pretend he has ever paid, and adding interest for ten or eleven years, they exceed the amount of the bonds. But the question is, whether this indebtedness could be permitted to operate or be available to Charles Hewlett, if he were living, or to the complainant as his representative by way of set-off or ex-tinguishment of the bond debts ? If the indebtedness was to the partnership or firm of C. & N. Hewlett, then Charles Hewlett, as surviving partner, could have made a set-off of the demand against his individual debt on the bonds: Collyer on Part. 448. If to Newberry individually, then, as administrator of Newberry, Charles could not make it a set-off against his own debt. The papers would seem to import on their face, that the indebtedness originally set down at five hundred and forty-eight.dollars, was to the partnership of C. & N. Hewlett; and that, by the note and draft, three hundred dollars of it remained so, and two hundred and ten dollars became due and payable to New-berry solely. But, however the fact might be and whatever the difficulties in the way of the complainant, if this case stood upon the right of set-off strictly in Charles Hewlett, I think there is but one conclusion to be formed, and that is the most charitable one for the defendant—that, in the year one thousand eight hundred and twenty-nine, when he proceeded to take the benefit of the insolvent act in Maryland, he considered these bond debts paid and extinguished by the money which he had for many years owed to his brothers, Charles and Newberry or one of them and which Charles had had the entire control of since the death ef Newberry, in the year one thousand eight hundred and twenty-three. Charles likewise considered Henry’s indebtedness as applicable, by his consent, to the extinguishment of the bonds, as is evident from the memorandum which he left behind him as a testimony of his understanding on the subject, and which he made shortly before and in anticipation of his approaching end. It is proved that Henry had the bonds with him in Baltimore, some short time previously, and he knew that he alone could claim the payment of them, and that if any thing was due upon the bonds, or should become due, that he would be entitled to receive it; and yet, in the statement of his property and effects under oath, he omitted to mention it and virtually declared that no such property belonged to him. He, indeed, goes further, and, in his list of creditors, makes no mention of C. & N. Hewlett or either of them as creditors. This omission can only be accounted for on the ground that he considered their mutual indebtedness cancelled; that he neither owed C. & N. Hewlett upon the note and draft, nor did Charles Hewlett owe him upon the bonds. It is in vain for him to say the bonds were not yet debts, or only choses in action, or not property inasmuch as Martha Hewlett was then living. They were instruments which created a debt in presentí, though solvendum in futuro, and he had succeeded to them, and they had become his property on the death of his brother' Newberry some six years before, and he was bound to include them in his list of credits or inventory of his estate, so that his creditors might have the benefit of them; and he was also bound to represent C. & N. Hewlett, or one of them among his creditors, unless, indeed, these cross-demands were compensated by each other and discharged. We cannot presume, that, in his insolvent proceedings, he committed perjury or intended wrong. On the contrary, it must be presumed that he exhibited a just and true account of his debts and credits: Gresley’s Eq. Ev. 368. His omission to mention the bonds at that time precludes him from setting them up afterwards as subsisting debts. Nor could he be permitted to avail himself of the statute of limitations as a bar to the simple contract debt which he owed to C. & N. Hewlett. He says, in his answer, that immediately after giving the note and draft in October, one thousand eight hundred and eighteen, he removed to Baltimore, where he resided until his discharge, in one thousand eight hundred and twenty-nine, when he returned to this state. During that period of eleven years, our statute did not run against creditors of his residing in this state. After his return, only about two years elapsed when the bill in this cause was filed for relief. Setting up the statute, therefore, in bar and claiming the benefit of it in his answer, can be of no service or protection to him.

But another question is made, whether the complainant is entitled to any relief in this court, after suffering judgment to be taken against him, by default, in the court of law upon the bonds 1 It must not be forgotten that the complainant is an administrator, acting, not upon his personal knowledge so much as upon the information of others which he might be able to collect, from time to time, in regard to the matters of defence, if any, which he might be able to make at law. He avows his ignorance of the defendant’s insolvent papers and proceedings, until it was too late for him to interpose a plea. Besides, if he had undertaken a defence, it is doubtful whether, upon the technical rules of law, he could have niade a set-off or insisted on an extinguishment of the bonds. He might, after all, have been obliged to seek equitable relief; and I think the complainant is fairly within the exception of the rule against granting relief after judgment, where the party has omitted to make a defence, as admitted in several of the cases: Lansing v. Eddy, 1 J. C. R. 51 ; Smith v. Lowry, Ib. 323 ; Barker v. Elkins, Ib. 466.

The complainant is entitled to the decree which his bill prays for, with costs.