|
|
|
|
|
|
|
356 SIMMONS v. TONGUE.
debtor as to him against whose estate the claim is made, is insol-
vent; or, according to the role of this court, the claim will be ex-
eluded from any participation in the distribution of the estate upon
which it is made, (n)
The auditor says, that the original acceptances ought to be pro-
duced. By this I understand it to be objected, that the original
bills of exchange themselves have not been produced. In an
action at law upon a bill of exchange, on the general issue being
pleaded, it is necessary to produce the original bill itself, or to
prove that it has been lost, before any evidence can be offered of
its contents, (o) And even if, in such action, there is a judgment
by default; although it is not necessary, on executing the writ of
inquiry, to prove the contract; yet the original bill itself must be
produced, (p) But, in the distribution of the real assets, this
court is governed by the rules prescribed for the authentication of
claims in the analogous distribution of the personal assets. As to
which it is declared, by the act in relation to the administration of
the personal estates of deceased persons, that in case of a spe-
cialty, bond, note, or protested bill of exchange, the voucher shall
be the instrument of writing itself, or a proved copy, in case it be
lost, with a certificate of the oath, &c. (q)
These directions apply to claims No. 67, 108, 109, 110, 111,
112 and 113, which must be allowed, because the acceptors are
shewn to be insolvent; to claims No. 69 and 70, which must be
rejected, because the original bills have not been produced or
shewn to be lost; and to claim No. 91, which must be rejected,
because it is made by an acceptor who has not shewn that he had
in his hands at the time no effects of the drawer.
According to the rule of this court, where the deceased, with
others, appears to have been jointly bound for the payment of the
claim, the creditor must explain the apparent ambiguity, or he will
be altogether excluded. He must shew that the deceased was the
principal debtor, in which case he will be permitted to come in for
the whole amount; or that the deceased was a co-obligor, in
which case the creditor will be allowed to claim no more than
half; unless he also shews that the other obligor is insolvent; or if
tie deceased was only a surety, then the creditor must shew that
the principal is insolvent (r)
(n) Watkins v. Worthington, 2 Bland, 500.—(o) Selwyn N. P. 408.—(p) Tidd's
Prac. 523.—(q) 1798, ch. 101, sub ch. 9, s. 4.—(r) Watkins v. Worthington, 2
Bland, 509.
|
|
|
|
|
|
|
|
 |
