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TESSIER v. WYSE. 35
to the plaintiff's claim. And so far as these or any other allega-
tions of any of these defendants may be understood to rely upon
the fact, as stated by the defendant John M. Wyse, that the plain-
tiff Tessier received the bond in full satisfaction of his claim
against the estate of the deceased, it is met, and so totally dis-
proved by the testimony, that there is not left even a plausible
pretext for any such defiance to rest upon. But, it would seem to
be intimated, by these allegations; and, perhaps, it was intended
to be relied on as a defence, that, as the plaintiff Tessier 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. Con-
sidering 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
presumption, 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, (a)
Here the debtor is dead, and the claim is made against his per-
sonal representative, and his heirs in respect of the personal and
(a) Heath o. Percival, 1 P. Will. 683; Powell v. Evans, 5 Ves. 839; Wright ».
Simpon, 6 Ves. 726; Tebbs 0. Carpenter, 1 Mad. Rep. 290.
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