
    Carpenter v. Dick.
    Under the statute relating to insolvent debtors tbe creditor of an assignor, wbo does not present bis claim prior to tbe payment of a dividend and within six months after publication of the notice of assignment, may afterwards present bis claim and receive a dividend thereon, equal to that paid to other creditors in case there .is money or assets remaining in the bands of tbe assignee sufficient to make such payment.
    
      Error to the District Court of Cuyahoga County.
    On the second day of January, 1880, Carpenter was duly appointed and qualified as the assignee of Matthew G. Rose, and at once gave notice thereof. • On the third day of August, 1880, the assignee filed a partial account of his trust and on the twenty-sixth day of the same month the account was approved and the assignee was ordered to pay a dividend of twenty per cent, to the creditors of Rose upon claims presented and allowed prior to the making of the order.
    On the nineteenth day of October, 1880, Dick & Meyer presented a claim to the assignee against Rose. After the payment of the dividend the assignee had in his possession sufficient money to pay the same dividend upon the claim of Dick & Meyer that had been paid to other creditors. In compliance with an order of the court of common pleas the assignee upon the twenty-second day of December, 1880, accepted the claim of Dick & Meyer, but refused to pay thereon the dividend of twenty per cent, paid on the claims of other creditors.
    Thereupon Dick & Meyer asked the probate court for an order directing the assignee to pay a dividend upon their claim of twenty per cent, out of money remaining undistributed in his hands. The probate court granted the order asked for by Dick «Sc Meyer and upon appeal the court of common pleas rendered the same judgment. Upon error the district court affirmed the judgment of the court of common pleas. We are asked to reverse the district court.
    
      Foster & Carpenter, for plaintiff in error.
    
      James Lawrence, for defendants in error.
   Nash, J.

Section 6852, Rev. Stats., which is a part of the chapter relating to insolvent creditors, provides among other things that creditors shall present their claims to an assignee for allowance within six months after the publication of notice of his appointment. The plaintiff in error claims that the effect of this provision is to bar a creditor, who presents his claim to an assignee after the expiration of six months, from any participation in a dividend, before that time ordered to be paid to creditors, even when the assignee has in his hands after the payment of the dividend sufficient money to pay this creditor the same dividend.

Justice Day says: “The requirement of the statute that creditors must present their claims for allowance within a certain period was not intended to be a limitation in bar of their right to a subsequent allowance of claims, but was intended to expedite the settlement of the trust and to protect the assignee in any lawful dividend or settlement that may have been made, and vigilant creditors in such rights as they may have acquired thereby. Whatever a creditor may lose by not presenting his claim for allowance within the statutory period by reason of a partial settlement of the trust, he may come in, at any time, for at least his equitable share in the assets unadministered andnot properly disposed of at the time he presents or prosecutes his claim for allowance in the mode prescribed by the statute.” Owens v. Ramsdell, 32. Ohio St., 442. If all the assets of an estate are exhausted in making any lawful dividend or settlement before the presentment of a claim which has not been offered to the assignee for approval within six months after the publication of notice, the tardy creditor must suffer by its non-payment. If, however, there are sufficient assets remaining he must be paid his equitable share therein. A due consideration of what is fair requires that he should be paid in the same proportion as the more vigilant creditors. By construing the section, in controversy, in this way its objects, to wit, to expedite the settlement of insolvent estates, to protect the assignee in any lawful dividend and settlement that may be made and to secure vigilant creditors in rights acquired thereby, will be attained, and at the same time equity will be done as between the creditors. We therefore agree with the court below and affirm the judgment of the district court.  