Hogan's Ex'r v. Calvert

21 Ala. 194 | Ala. | 1852

GrOLHTHWAITE, J.

— In tbe case of Bartol v. Calvert, Adm’r., at tbe present term, we decided that, under tbe statute of 1843, (Clay’s Digest, 194, §§ 10, 11,) no exceptions could be taken against a claim properly filed against an insolvent estate, going to tbe affidavit, or to tbe claim itself, unless such exceptions were filed within tbe time required by the provisions of that act; and that objections extending to the time of filing might be made at any time. This decision renders it unnecessary to consider tbe question presented as to tbe verification of tbe claim, tbe record showing affirmatively that it was not made until some years after tbe decree of insolvency, and also that it was objected to by tbe claimant. Although tbe action of that court may have been erroneous, in. allowing an exception to be taken to tbe affidavit; yet, if the claim upon its face shows no liability, or showing a liability was not filed in time, it was rightly rejected, and the judgment of the court being correct, the plaintiff in error cannot complain of that which was not prejudicial to him.

The estate was reported insolvent on the 21st February, 1846, and the claim was filed on the 20th August of the same year, which was in time. In relation to the exception, that no liability appeared upon the face of the claim, we may remark, that the principal object of the Legislature, in the enactment of the law of 1843, regulating proceedings on insolvent estates, was, to provide a cheap and expeditious mode for the settlement of estates in that condition. The creditor was required to file his claim within six months after the decree of insolvency, and the administrator, or any creditor in his name, might contest any claim within three months after the expiration of the latest day allowed for filing. The estate was not to be embarrassed, or the proceedings delayed, by proof of the claims, except in such cases as the real parties in interest might denote, by directing their exceptions to them; and failing thus to proceed was held as an implied admission of their correctness, and judgment was rendered accordingly. As, however, the action of the court, in rendering its judgment, could only be prejudicial on the claim as it was asserted against the estate, although no particular form is required, it has been held, that enough must appear to show the liability of the estate to the party asserting the claim. Cook v. Davis, 12 Ala.

There is no decision expressly to the point, that a party having merely an equitable demand will be allowed to proceed under the act referred to; but we see great inconvenience in compelling a resort in such cases to a court of chancery, and think the right clearly deducible from the objects of the statute.

There is but little difficulty in the application of these principles to the facts disclosed by the record before us. The first item of the claim is made up of sundry bills of exchange, on which the liability of the intestate Hammond appears, and the right of the testator Hogan accrues from the endorsement, as stated in the account. In relation to the item of $2,008, we consider the statement of the account in effect to be, that this sum was due from the firm of Hogan & Hammond to Whitaker & Bartol, which Hammond, by his agreement filed with the account, had assumed; and the question in this aspect is simply, whether the item referred to, taken in connection with the agreement filed, shows a demand due to Hogan for which the estate is responsible. The argument that Hogan had no claim upon the estate, until he had actually paid the amount due, cannot be sustained. The covenant of Hammond was not one of indemnity; it was affirmative. He was to pay the debts of the co-partnership, without unnecessary delay, and a failure on his part to perform the act which he had covenanted to do, would have given a right of action to Hogan. Ex parte Negus, 7 Wend. 499; Port v. Jackson, 17 Johns. 239; ib. 479; Chace v. Hinman, 8 Wend. 452; Ramsey v. Gervais, 2 Bay, 145; Bauer v. Roth, 4 Rawle 99; 1 Saunders 177, note. The cases cited are conclusive as to the right of action; and as to the damages the rule is, that where a bond is conditioned for the payment of money at a certain day, though it appear that it was given by way of indemnity merely, the whole debt accrues from the day mentioned in the condition, and does not wait the damnification. Toussaint v. Martinnant, 2 Term, R. 100; Martin v. Count, ib. 640; Hodgson v. Bell, 9 Term, R. 97; Holmes v. Rhodes, 1 B. & P. 638; and the same rule was applied to covenants. Port. v. Jackson, 17 Johns. 239; Ex parte Negus, 7 Wend. 499. The circumstance that it was a co-partnership debt does not in any manner affect the rule. If Hogan was by suit upon the covenant to recover the amount of the co-partnership debts from Hammond, who was afterwards compelled to pay them by the creditors, he could resort to Hogan for his proportion, and the covenant could not, after he had sued and obtained satisfaction upon it. be invoked for his protection.

It follows from these views, that the item referred to correctly showed the liability of the estate, and that the court below, under the circumstances, erred in its rejection.

The judgment is reversed, and the cause remanded.