#### Dozier v. Arkadelphia Cotton Mills.

Opinion delivered June 6, 1903.

Statute of Limitation — By Whom Pleaded. — In a proceeding to distribute the assets of an insolvent corporation, where the corporation fails to plead the statute of limitations against any claims against it, the statute cannot be availed of by one creditor against the claim of another creditor.

Appeal from Clark Circuit Court.

Joel D. Conway, Judge.

Affirmed.

McMillan & McMillan, Rose, Hemingway & Rose, for appellants.

McNutt stands in the attitude of a trustee for the benefit of creditors, under a general assignment. 53 Ark. 567; 67 Ark. 346; 68 Ark. 75. *

J. H, Crawford, for appellees.

Battle, J.

On the 24th of November, 1892, the Arkadelphia Cotton Mills, a domestic corporation, by a resolution adopted by its stockholders, ordered its board of directors to sell its property and appropriate the proceeds of the sale to the payment of its debts, so far as they would extend. The board did so, and appropriated the proceeds toothe satisfaction of part of the debts. On the 19th of April, 1897, M. B. Dozier, as administrator of J. S. Massey, deceased, and C. K. Boswell instituted a suit in behalf of themselves and all other creditors of the Arkadelphia Cotton Mills against the Arkadelphia Cotton Mills and S. R. McNutt, and stated that the defendant corporation was indebted to each of them; and asked that an accounting be had to ascertain the amount of the debts of the corporation, and.that the proceeds of the sale of its property be equally distributed among its creditors. The court below denied the relief they sought, and they appealed. This court *408held that the proceeds should have been distributed among the creditors pro rata> and reversed the decree of the court below, and remanded the cause with directions to the court to enter a decree in favor of appellants for such amounts as would be equal to their pro rata shares of the proceeds of the sale in a distribution thereof among the creditors according to the amounts due them from the corporation; appellant’s claims being undisputed. Dozier v. Arkadelphia Cotton Mills, 67 Ark. 11.

Upon a remand of the cause the circuit court ascertained the amount of the indebtedness of the Arkadelphia Cotton Mills, and apportioned the proceeds of the sale among its creditors, and rendered judgment in favor of plaintiffs for their respective pro rata shares, according to the directions of this court; and plaintiffs appealed.

Appellants now insist that the court erred in its apportionment, because the claims of many of the creditors to whom distributive shares were allowed were barred by the statute of limitations. Be this as it may, they were entitled to their proportion of the proceeds of the sale, provided the Arkadelphia Cotton Mills did not set up the statute of limitations in bar of their right. It was a party to this suit, and did not do so. It has the right to pay its just debts, so far a's it can, and it is not within the power of appellants to take from it this right. But appellants seem to be apprehensive of a failure of some of its creditors to collect their shares. There is no evidence that they will, and courts can not deprive .them of their rights upon such apprehension.

Decree affirmed.