Mitchell v. Cox

28 Ga. 32

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin, J.,

delivering the opinion.

Whether Mitchell holds the note of Buffington, belonging to the estate of White E. Harden, or the proceeds which stand in the place of it, makes no difference* In the settlement of the note he was justifiable in allowing as a set-off, or part payment, the counter claims held by Buffington against Harden. He could not have compelled payment of Buffington, except for the excess. But as to the surplus, if there be any, the courtesy between States does riot, we apprehend, extend so far as to require this fund to be transmitted to the State of Arkansas, and force the creditor in this State to go there to collect his debt. On the contrary, we rather think that the fund should be impounded here, until Cóx can receive, at least, his pro rata share of the entire assets of the deceased, provided the estate is insolvent. If the estate be solvent, then, there need be no controversy ; but the whole amount of the money here should go to the creditor here. All that justice demands is, that when an estimate is made of the "whole estate of Harden — if the part coming to the claim of Cox would be less than the fund in G-eorgia — in that event, for the overplus to be sent by the ancillary administrator here, to the principal administrator in Arkansas. We are not prepared to say that even this is not going too far.

We see no reason for reversing the circuit judge.

Judgment affirmed.