Smith v. Brinkerhoff (6 N.Y. 305, 1852)

Gardiner, J.

— The first section of the bankrupt law (5 Statutes at Large 440), provides, that the persons therein mentioned, who shall, by petition, setting forth, h, :ai;~ar the death of the j nteiate. (Root v. Teyler, J- Johns. 137.)

In that case, Ogden v. Cowley and Dickson v. Evans (supra) were cited and commented upon, as settling the question, not so much on the ground of the enactments in the bankrupt law, as on those of the statute of set-off ; and the case in 6 T. It. was regarded as applicable to the English statute of set-off, and consequently to our statute. I conclude, by adopting its language, that this is not a case within the statute; that the bankrupt and the defendants never were indebted to each other, and had not demands arising on contracts or credits against each other, and that it would be unjust, and against the whole policy of the statute, to allow a set-off acquired against the estate of á bankrupt, after his petition in bankruptcy. See also Wells v. Stewart (3 Barb. 40), where the principle is recognised.

Judgment affirmed.