
    In re the estate of Samuel C. Stelle, assigned for the benefit of his creditors.
    After the damages have been assessed against an assignee and Ms surety, ' on their bond given under the assignment act, the surety cannot have the amount of a creditor’s claim deducted therefrom, on the ground that it was not presented to the assignee under oath, where such claim was allowed and included in all of the assignee’s accounts, and no creditor objects thereto. He is bound to answer for all the money found due from his principal.
    
      Mr. G. T. Cowenhoven, for applicant.
    
      Mr. A. V. Sdhench, for Juliet Stelle.
   The Ordihauy.

The bond given according to the statute by the assignee of Samuel C. Stelle, was prosecuted by direction of the ordinary, and a judgment was rendered thereon against the assignee and his surety for the amount of the penalty. The damages were assessed by the ordinary, and execution issued for the amount thereof, and costs accordingly. The surety applies for a reduction of the amount of the assessment to the extent of the dividend allowed to Mrs. Juliet Stelle by the decree made on the assignee’s final account. That dividend was ordered on a claim originally in favor of the Raritan Building Loan Association, and assigned by the association to Mrs. Stelle. The ground on which it is urged that it should be disallowed is that the claim was not presented under oath, or affirmation. The claim was based on the assumption by Samuel C. Stelle, on the conveyance of land to him, of a mortgage thereon, the amount of the mortgage being allowed to him as so much of the purchase-money. The property passed to the assignee under the assignment. He appears to have obtained from the association a statement of the amount due on the mortgage, and to have reported it as a claim to that amount against the estate, in favor of the association. Pie sold the property subject to the mortgage, and the mortgage was afterwards foreclosed. The decree of foreclosure was assigned to Mrs. Stelle, in consideration of the payment by her of the full amount due thereon. The property was subsequently sold under the foreclosure, and there was a deficiency. In the assignee’s final account, made after the sale under the foreclosure and before the suit was brought on the assignee’s bond, the debt of Mrs. Stelle was stated at the amount due for the deficiency. There never was any exception filed to the claim. The assignee not only reported but swore to it in 1876 as a claim duly made, and it was afterwards sold to Mrs. Stelle. Subsequently to the sale of the claim to her, it was put in the assignee’s account in her own name, and by order of the court she was declared to be entitled to a dividend on it. But, further and principally, by his final account it appears that the assignee had in his hands a certain sum of money distributable among the creditors. Who those creditors are, and what is their dividend, the court has settled. Ho creditor is here objecting to Mrs. Stelle’s claim, but it is the surety who objects, and who thus seeks to avoid payment of part of the money which it is admitted is due from him. The creditors have never questioned Mrs. Stelle’s right to a dividend. If the present application were successful, the practical effect would be to relieve the surety from the payment of money which he is clearly, both legally and equitably, bound to pay. Pie is bound for all the money which, according to the final account of the assignee, was in the hands of the latter for distribution among the creditors. By this application he practically seeks to be relieved from the .payment of part of it, not on the ground that it is not due from the assigneej but on the ground that a creditor whom the court decreed to be entitled to it ought not, as between her and the other creditors, to have it. That is a matter which does not concern him. The application is denied, with costs.  