Lamberton v. Freeman

No objection has been taken that Lamberton paid the note to Flanders before it became due, and that fact would probably constitute no bar to the claim of Farwell as assignee. Clark was dead at the time of the payment. If the administrator was appointed before the date of the maturity, he made, so far as appears, no attempt to pay the amount; and under these circumstances if Lamberton was claiming the amount with no other objection than the fact that he paid before maturity, it does not appear that it would avail to defeat the claim. How it might have been if Clark had lived until after the note became due, so that he could have made provision for the payment of it at maturity but for the previous payment by the surety, need not be considered. Lamberton did not assign his claim against the estate to Farwell until after the time, of the maturity of the note.

Farwell took as assignee subject to all equities, and if the administrator had paid the notes to Spaulding and D. D. Freeman on which Clark was surety for Lamberton before the presentation of the claim by Farwell, there seems to be no reason why the amount paid should not have been set-off against the claim of Lamberton in the hands of Farwell.

But the claims of Spaulding and D. D. Freeman were regularly allowed as debts due them from the estate of Clark, and notwithstanding the administrator agreed to purchase or take them up, it was only upon the consideration of paying the dividend on them, and they have *550remained standing as claims against the estate embraced in the list reported by the commissioners and accepted by the judge, and moreover a dividend has since been decreed and paid on them as on other claims against the estate. They can not be treated as debts which have been paid, by reason of which payment the estate has a claim against Lamberton, at the same time that they are existing debts against the estate and treated as such. While they existed as debts against the estate unpaid, there was no debt due from Lamberton to the estate. As existing claims against Clark’s estate they furnished no ground of set-off when this appeal was taken. If the administrator had paid them they would have ceased to be debts due from the estate and should have been stricken from the list of claims.

Under the existing circumstances there was no time’ when the administrator or the estate had any right of action or claim' against Lamberton for money paid by reason of these, notes, until the payment of the dividend. The estate must take such remedy as may be had against Lamberton, and the case may appear to be a hard one. It would have been but equitable as between Clark’s estate and Lamberton that the different claims should have been set against each other, if they had been in a situation to authorize the court to make the set-off; and a proceeding in equity might perhaps have reached the case.

Judgment on the vexdiet.