Backus v. Cleaveland

1 Kirby 36

Opinion

By the whole Court.

The amount of the plaintiff’s claim against the estate of the deceased, could not be ascertained until the final judgment in the cause then pending before the Superior Court, as mentioned in the plaintiff’s reply; which judgment was not rendered until after the expiration of the term limited by the Court of Probate, for exhibiting the claims of the creditors to said estate. 3 Wil son, 13, Chilton v. Whiffin; 2 Strange, 867, Tully v. Sparkes;, 2 Ld. Raym. 1546, 1570.

It appears by the pleadings, that the defendant well knew the demand that the plaintiff had against the estate, and the circumstances attending the same, and that he has sufficient estate of the deceased in his hands to discharge it: Therefore the plaintiff is not by law foreclosed from recovering his debt according to the true intent of the statute in that case provided. 2 Strange, 1043, Hockley v. Merry; 3 Wilson, 262, Goddard v. Vanderheyden.

N. B.— This judgment was afterwards affirmed in the Supreme Court of Errors.