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it would amount to $163.80, and deducting the hire of Albert from the account of Comr Bryce of that day say $450 and there would remain a balance of assets on that day Jan 1, 1844 in the hands of the Exr. of $185.14, more than sufficient to pay the debt of $21.34. The case of Cutting & Carter 5 munf. 223, Garrett v Carr 3 Leigh 407, and Handly & Snodgrass 9 Leigh 484 show conclusively that this is the true principle upon which the account should be settled even in a legatee suit and there is no legacy more favored by courts than that of freedom. If the account were settled upon this principle there would now be a surplus of assets applicable to debts of some $460. or $500 over and above the debts, charging the Exr. as he ought to be charged with the hire of Lewy for the year 1844. 3. It is insisted by the defendant Garland that if there should a deficiency of assets in the hands of the Exr. of Thomas Brooks to discharge the debts of the estate, and such deficiency can be raised in a reasonable time from the hire of the plaintiff, that the court is bound by the decisions of the court of appeals to have the plaintiff hired out to raise such deficiency, and cannot compel him (Garland) to pay such deficiency, his liability arising, only when the plaintiff cannot otherwise recover his freedom. 4. It is insistent that Wm. Gray, the surety of the Exr. of Thomas Brooks and who is liable