Horn v. Thomas

By the Court. Lumpkin, J. delivering the opinion. [1.] Upon the whole, we are'inclined to the opinion, and" so adjudicate, that it is better that the injunction should be retained till the hearing. The gravamen of the bill, is the mal-administration of the ■ assets of John Hampton’s estate, by Erancis Thomas. The-denial of this charge is not fully made by the answer. It was in the power of the defendant to have stated, more defi- - nitely, what debts were paid and the grade of each; what amount of the debts, and which inventoried as due the intestate, were lost and uncollectable by reason of sets-off, payment, &e. The answer is too vague, general and indefinite, in these tod other respects. If the judgment transferred by Lunday to Andrew Hampton, ought to have been satisfied out of the estate, in Equity as well as at Law, it is still due, and should be allowed to [273] set-off ihe notes sued on; for Andrew Hampton holds this demand through his sister, to whom it was' owing, and who cannot be affected by the proceedings in the Equity cause between Andrew Hampton and Francis Thomas. [2.] There are facts in this case which require explanation. No satisfactory reason is assigned why these notes were' not collected sooner. Sujjpose they had, as it is argued, become the private property of Thomas, on account of his advances in behalf of the estate of his deceased brother, is that a good excuse why they were not retained out of the $5,000 turned over by Thomas to Hampton ? According to the usual dealings and course of business between men, it is not. Why is it that Andrew Hampton took the judgment from his sister’s husband against his brother John, in part payment of her note, which was the same as cash, if it was not understood by all the parties that the judgment was good ? For what purpose did he take this judgment at all, if not to rebut against his notes ? The fact that the amount of this judgment was thus taken as cash by Andrew Hampton; that no effort was made to ■coerce its payment; that it corresponds, in size, with the notes upon which he is sued as principal, and the estate of Ms dead brother as security, is suggestive of doubts as to the bona fides of this proceeding, to say the least of it, and to create a strong suspicion that the whole of this case is not out. After waiting so patiently for six years, the creditor can hardly complain of a little longer delay; whereas, Andrew Hampton being insolvent, the dissolution of the injunction might work irreparable detriment to the security. . The position was assumed by Counsel for Horn, that admitting that Thomas had paid judgment debts of his intestate with his own money, he is not thereby subrogated to the dignity of the debts so discharged, but becomes a simple contract creditor only for the amount so discharged. Of necessity, this must be wrong; for in accounting with the administrator for his disbursement of the assets, you must, of [274] course, look to the grade of the debts which he has paid;' and if he has complied with the Statute, as to priority of-' payments, he will be protected, of course.