Watkins v. Parker

Hart, J., (after stating the facts). The decision of the chancellor was wrong. We will first take up the right of the defendant to setoff the note given by Howell to the Bank of Hamburg and purchased by defendant after Howell’s death. “In suits by administrators, debts existing against their in-testates and owing to the defendant at the time of the death of the intestate may be setoff by the defendant in the same manner as if the action had been brought by and in the name of the deceased.” Kirby’s Digest, § 6102. It is plain from the language of this section that the defendant did not have under it the right to hold the note and use it ás a setoff to a suit which might be brought against him by Howell’s administrator. This is so because he was- not the owner or holder of the note at the date of Howell’s death. It follows that if the defendant could not hold the note and use it under section 6102, supra, as a setoff to an anticipated suit against him by Howell’s administrator, it was his duty to probate it as a -claim against Howell’s estate. It is true the note was not due at the date of Howell’s death, but it has -been the settled law of this State since the decisions of Walker v. Byers, 14 Ark. 253, and Bennett v. Dawson, 18 Ark. 334, that all demands “subsisting at the time of the death of the testator or interstate, whether' matured or not, capable of being asserted in a court of justice, whether of law or equity,” must be exhibited within the statutory period or else be barred. The note in question was not exhibited within the time prescribed by the statute, and is barred by the statute of nonclaim. A claim barred by the statute of nonclaim can not be setoff to an action by the administrator for a debt due his decedent. Bell v. Andrews, 34 Ala. 538; Patrick v. Petty, 83 Ala. 420; Jones v. Jones, 21 N. H. 219; Swing v. Griswold, 43 Vt. 400. To the same effect, see Walker v. Byers, 19 Ark. 323. It is also insisted by counsel for defendant that he should be allowed to setoff to the action of the administrator the costs adjudged him in the case of Watkins v. Parker, referred to in our statement of facts, but he does not show that he paid any of these costs. He only shows that certain costs were taxed in that case. He should have alleged and proved that he paid the costs. It is true that costs by statute are an incident to the judgment, but a party to a suit has no right to collect costs unless he has paid them. The reason for this is that officers and witnesses in whose favor costs are taxed have the right to collect them themselves by fee bills, so, if the losing party should pay the costs to his adversary without any showing that he had paid them to officers or witnesses entitled to them, he might become liable to pay them a second time. The decree will be reversed, and the cause remanded with directions to enter a decree in accordance with the opinion.