Commercial Bank v. Neally , 39 Me. 402 ( 1855 )

Seepley, C. J.

— The administrator of Joseph Sewali appears to have been summoned as the trustee of Neally on April 24, 1852. At that time Neally appears to have held a note for $2300', signed by Joseph -Sewali and others, the-consideration of which was, that Neally had become surety on other paper for Sewali. It appears to have been a negotiable note.

The intestate, while alive, could not have been adjudged to be the trustee of Neally on account of having given that note. Statute, c. 119, § 63. It could not have been the intention to make an administrator liable in such a case as trustee, by the forty-third section, for he could be no more certain than his intestate could, that the note was due to the promisee.

When service of the writ was made upon the administrator, the estate of Joseph Sewali was not indebted to Neally by reason of the notes, on which he had become surety for Sewali; for at that time Neally had not paid any thing on account of them. *

The fact, that Neally’s estate had then been attached on suits commenced upon them, did not create or constitute any debt either absolute or contingent due from the estate of Sewali to him. Exceptions overruled.