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THE CAPE SABLE COMPANY'S CASE. 673
obtaining satisfaction, when he, himself, could derive no possible
advantage from it. For, after the claim of a creditor has been
rejected or satisfied, he is, as to the surplus, a mere stranger, and
cannot be allowed to interfere with the distribution of it in any way
whatever.
Therefore these pleas of the statute of limitations, as well as all
other objections, as coming from Oliver, Carroll and O'Hara, and
directed against the inferior claims No. 6, 7, 8, 9, 10, 11, 12, 13,
14, 15 and 16, must be entirely overruled.
It is a rule of this court, that in all cases where any one is
chargeable under a creditor's suit as a surety, the creditor must
prove the insolvency of his principal debtor before he can be
allowed to obtain any satisfaction from the proceeds of the estate
of the surety then about to be distributed; and it is enough, as in
this instance, that the parties do, in fact and in equity, stand in
that relation towards each other; although the contract may not
have that aspect, according to the strict and technical rules of the
common law. (w) Upon this ground the claim of George Neilson,
administrator of James Neilson, deceased, No. 6, must be rejected,
there being no proof of the insolvency of the principal debtors.
An express and distinct acknowledgment of the debt by the
debtor himself has, in most cases, been deemed sufficient to pre-
vent the operation of the statute of limitations. Under a creditor's
bill, and in cases of that kind, as this is, although the court will not
deny to any one the benefit of any such acknowledgment for the
purpose of resuscitating his claim; yet such an acknowledgment
will not be permitted to have any such effect where there is just
ground to believe, that there has been any collusion in procuring
it to be made with a view to injure or lessen the dividends of other
creditors. But here, this claim of Eli Balder son. No. 11, is not
taken out of the statute of limitations, which has been relied on,
as against it, by the plaintiffs, by Lechleitner, and by others, by a
mere acknowledgment; but by materials or testimony in its sup-
port furnished by the debtor company themselves; and, therefore,
this claim must be allowed.
It sufficiently appears from the deed of the 25th of September,
1813, and the proofs referred to by the auditor, that Lechleitner and
Troost were the partners, of the second part, of those who consti-
tuted the association of Richard (Mm, John Gibson and others;
(w) Watkins o. Worthington, 2 Bland, 509.
85 v. 3
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