M. H. Brandon v. . T. A. Allison

Reade, J.

Before the Act of 6th April, 1869, which went into effect 1st July. 1869, preventing all preference in the payment of debts by executors and administrators, and requiring all debts of the same class, in their order, to be paid pro rata— executors and administrators had the right to prefer one debt to another of equal dignity. And this case stands under the old law, because administration was granted before the Act of 1869. There being other debts equal in dignity to the claim of the defendant, the plaintiff had the light to postpone the claim of the defendant, there not being enough to pay all. And besides this, it seems that other creditors had already obtained judgments against the administrator upon debts of equal dignity with the claim of the defendant, to an amount more than sufficient to cover all the assets. The judgment quandoT in iavor of the defendant against the plaintiff as administrator is not available as a set off or as a counter-claim. It must be observed that the bond sued on is not a bond payable to the plaintiff’s intestate, but it is a bond payable to the plaintiff as administrator, given by the defendant as the purchaser of land sold by the plaintiff’ as administrator under a license from Court, to pay debts. It may be that if there were no other debts against the estate, and if the defendant was certainly entitled to have the assets applied to his claim, it would be vain to allow the plaintiff to collect the money of the defendant when he would have to pay it right back. But that is not the case here, for it appears that there are judgments already against the plaintiff, as administrator, which will take all the assets.

Per Curiam. Judgment affirmed.