Ormsby v. Anson ( 1842 )

The opinion of the Court was by

Shepley J.

■— It is contended, that the answer to the fifth interrogatory is not sufficiently certain to entitle the trustee to a discharge. The principal had performed services for the intestate, and had received payments in part, and on the day of the service of the writ a further payment by note of seventy-five dollars. The inquiry is made, whether that note was given on that day before or after the service of the trustee process. The answer is, that it was given to the best of my knowledge prior to the service. This might not be satisfactory, if the answer had come from one having certain knowledge of the business ; but it cannot be expected, that the administratrix should be possessed of the same degree of knowledge, and this appears to be the best evidence, which can be obtained.

The other services must be,regarded according to the statements of the administratrix as performed for the State, and not for the intestate. And if the intestate or his personal representative made use of the map in compiling one claimed to be his own, that would not change the character of the original transaction, or give the principal any new rights, unless there was some new agreement. It might perhaps affect the copyright, but not the original contract, under which the services were rendered. The arrangement made by the attorney of the administratrix, after the death of the intestate, could not affect the decision of this question. For if the intestate was not liable to pay for the services at the time of the commencement of this process, no arrangement made after his death by which the principal first became entitled to payment could authorize a decision, that the intestate was liable at the time when the process was served upon him.

Trustee discharged.