TESSIER v. WYSE.—3 BLAND. 25

might have obtained satisfaction from the personal estate of the
deceased, he has now, by his negligence and misconduct, lost his
right to have recourse to the deceased's real estate.

The nature of the negligence and misconduct of the plaintiff
Tessier, thus relied on as a bar to his claim, have not been dis-
tinctly described; but, from all the circumstances of the case, it is
evident, that none can be imputed to him, other than that of hav-
ing failed to exert more active diligence for the recovery of his
claim, either against the personal representatives, or the heirs of
his deceased debtor, or both of them.

But a creditor is, under no circumstances, bound in behalf of his
principal debtor, to use any degree of active diligence. Consider-
ing the debt as an incumbrance, or as an inconvenience in any way,
it is in the power of the debtor at pleasure to remove it by making
payment according to the terms of his own stipulation. If the
creditor should remain inactive so long as to afford a legal pre
sumption, that the debt had, in truth, never existed, or had been
paid, the debtor may protect himself by relying on the Statute of
Limitations, or the lapse of time as conclusive evidence in support
of such presumption in bar of the plaintiff's claim. Apart from
the Statute of Limitations, or lapse of time as a bar. upon which
none of these defendants have relied, no debtor is ever permitted
to complain of the mere inactivity of his creditor. And, unless in
cases where a creditor can be charged as a trustee, guilty of a
breach of trust in not claiming, his merely neglecting to sue can
never be imputed to him as a wilful default, or as injurious con-
duct towards any one. Heath v. Percival, 1 P. Will. 683; Powell
v. Evans, 5 Ves. 839; Wright v. Simpson, 6 Vex. 726; Tebbs v. Car-
penter, 1 Mad. Rep. 290.

Here the debtor is dead, and the claim is made against his per-
sonal representative, and his heirs in respect of the personal and
* real assets which have come to their hands. It is a mort
gagee from some of the heirs, and an heir who makes this 36
defence against this claim.

As regards the mortgagee, it is perfectly clear, that he might, at
any time. ha\e sued for and recovered his claim by bill for a fore
closure and sale, or otherwise; or he might, by a creditor's suit,
have called before the Court the creditors of the deceased, in order
to have the property, so far as it had been mortgaged to him, re-
lieved from their prior claims, by having them satisfied or rejected,
so as to have the surplus applied in satisfaction of his claim. This
mortgagee cannot, therefore, be permitted to complain of the neg-
ligence of. this creditor, when it is so perfectly obvious, that he
might have had him called before the Court, and thus compelled
to receive satisfaction tor his, this mortgagee's benefit. It is
equally well settled, that a next of kin or heir may, by a creditor's
suit, have the personal and real estate administered in equity, in