Lockhart v. Johnson.

that whenever a garnishee submits to answer, or when the suit is not terminated by a judgment against the defendant in attachment, the garnishee continues before the court, for the purpose of receiving the judgment upon his answer. But this, we conceive, is materially different from considering him as before the court for the purpose of contesting his answer, whether that is done by the plaintiff or defendant in the attachment." The sections of the statute which provide for the contestation of the garnishee's answer by the plaintiff, or defendant, are not materially variant, and if the law be as stated, when controverted by the defendant, we think it clear that it should be administered with quite as much strictness as applied to the plaintiff. The same reasoning applies with equal force to each; and it would be quite as oppressive to the garnishee, to compel him to remain in court, from term to term, and the danger of surprise equally great, where his answer is contested by the one party or the other.

In this case, as well as in that cited, the garnishee moved his discharge at the next term after he had answered, and did no act indicating a willingness to join in the issue, and present the matters in controversy to the jury. There is, then, no admission upon the record, either express or implied, which takes from him the right of insisting upon the irregularity on error.

Several other points are raised by the bill of exceptions upon the deed to which the garnishee's answer refers; but as the question considered is decisive of the case at bar, and there are other causes before us, which present the points referred to, we will not now enter upon their examination. We have but to add, that the judgment of the Circuit Court is reversed.

27

Mitchell v. Burt.

MITCHELL v. BURT.

1. When one joint maker of a promissory note is the administrator of his co-maker, he is entitled, when sued, to set off against the payee any debt which the latter owes to the deceased co-maker.

Error to the Circuit Court of Autauga.

ACTION of assumpsit, by Burt, suing for the use of Raymond Robinson, against Mitchell, as the co-maker of a note with one John E. Mitchell. At the trial, the plea of set off being pleaded, with other pleas, the defendant proved, that an attachment, at the suit of T. & R. Morton, was issued against the estate of Burt, and John E. Mitchell, the co-maker of the note summoned as a garnishee. At the October term, 1842, the garnishee answered that he was indebted to Burt by two promissory notes, each for $2,000, one due 1st January, 1843, and the other due 1st January, 1844, both signed by himself and the defendant in this suit. The answer was received, and the cause continued to the spring term, 1843, with an order to the garnishee to retain out of the note first due, a sum sufficient to answer the plaintiffs in attachment. At the spring term, 1843, a judgment was entered against the garnishee on his answer. This judgment was afterwards, on the 15th April, 1844, paid by the defendant in this suit, as the administrator of John E. Mitchell, who died after the rendition of judgment against him as garnishee. John E. Mitchell, in his life time, paid to Burt the note which fell due on the 1st January, 1843. menced in November, 1845, and it was also admitted by the plaintiff, that any legal set off against Burt should be valid against the party for whose use the suit was brought.

The present action was com

Under this state of proof the court ruled, and so instructed the jury, that the money paid upon the judgment, was not a legal set off, under the circumstances disclosed.

Mitchell v. Burt.

The defendant excepted, and now assigns this charge as

error.

J. W. PRYOR, for the plaintiff in error, cited Johns v. Field, 5 Ala. R. 484; Chandler v. Chandler, Ib. 567; Winston v. Metcalf, 6 Ib. 756.

J. P. SAFFOLD, contra, insisted, the payment made by J. E. Mitchell, of the first note to Burt, was in his own wrong, but gives no right to the present defendant to set off the judgment paid by him as administrator, against this note. As the administrator of J. E. Mitchell, he may be entitled to his action against Burt, but cannot retain in that character against this suit.

GOLDTHWAITE, J.-We do not perceive how the order made, upon the answer of the garnishee, for him to retain the sum garnisheed, out of the first note, instead of the other, can affect this suit, as there is no question with us, that when the deceased, Mitchell, paid the note first falling due, and his administrator paid the judgment recovered upon the garnishment, Burt at once became a debtor to the estate, for so much money paid to his use. This being the legal effect of the payment, it is only necessary to inquire, whether the other maker, when afterwards sued on the other joint note, may insist upon the payment as a set off. The case,

as thus presented, is very similar to that of Winston v. Metcalf, 6 Ala. R. 756, where we held, that a surety was entitled, when sued alone, to set off a debt due to his principal, upon showing his assent, and producing the note offered to be set off. We then said, with reference to the statute authorizing the assignment of promissory notes, "when the plaintiff acquired his interest in the note sued on,”—the suit was by an assignee "it was affected with the legal right of the principal debtor, to set off the note then held by him against the payee, and it seems to us, this right can be in no wise impaired by any act of the plaintiff. True he is entitled to sue either party severally, but when he does so, it does not follow that he avoids any defence which could be interposed if the suit was against the principal debtor." This

Pippin v. Huntington.

reasoning applies equally, when the suit is against one of two joint makers, and the set off is with the concurrence of the one not sued. Here the concurrence will be presumed, because the defendant is the administrator of the deceased comaker, and the set off not being an assignable debt, there is no necessity for its production.

The result of this consideration is, that the set off should have been allowed, and therefore the error of the charge is apparent.

Judgment reversed and remanded,

PIPPIN v. HUNTINGTON,

1, P purchased some slaves of H, for $1400, upon which A and B had mort.. gages, the latter being the eldest, paid down $1000, and executed his note for $400, H agreeing to satisfy both mortgages. At the time of the sale, the slaves were in the possession of A, to whom H delivered the note of $400, and obtained possession of the sleves, which he delivered over to P. H did not satisfy the mortgage of B, and P was compelled to pay upon it a larger sum than the amount of the note. Suit being brought on the note in the name of H, for the use of A against P-Held that if P was privy to, and assented to the agreement between H and A, by which the former obtained possession of the slaves from A, he could not defend himself against the payment of the note, by proving that he had been compelled to pay a larger sum for H, but in the absence of such proof, A must be understood as having delivered up the slaves, on the responsibility of H, and had therefore no greater rights than H would have, if suing for his own benefit.

Error to the Circuit Court of Greene,

DEBT, by the defendant in error against the plaintiff in error, on a sealed note, for the use of one Adams.

Pleas, the "general issue, failure of consideration, payment, and set off, in short, by consent."

Upon the trial of the cause, the defendant proved, that he

Pippin v. Huntington.

purchased from Huntington, two slaves at $1400, one thousand dollars of which was paid in cash, and the note sued on given for the residue. That at the time of the purchase there were two mortgages on the slaves, one in favor of Adams, for whose use the suit is brought, and the other in favor of one Boothe, both of which were in force, and unsatisfied, Boothe's being the eldest, and Huntington agreed to satisfy both mortgages. At the time of the sale, the negroes were in the possession of Adams, and the note sued upon, notwithstanding the understanding that it should go to Boothe, was given to Adams by Huntington, in satisfaction of his mortgage, who then gave up the negroes to Huntington, by whom they were delivered to the defendant. Huntington did not discharge Boothe's mortgage, and the defendant was compelled to pay Boothe upwards of $600, to relieve the slaves from the lien of the mortgage.

Upon this testimony, the defendant moved the court to charge, that if the contract between the plaintiff and defendant, was, that the note should be applied to the payment of Boothe's mortgage, so as to perfect the title, and it was not so applied, and Boothe's mortgage was not otherwise satisfied by the plaintiff, and that defendant had been compelled to pay a larger sum, than the amount of the note, to extinguish his mortgage, the plaintiff could not re

cover.

Also, that if the contract between the plaintiff and defendant was, that he was not to pay the note, unless the plaintiff paid off and extinguished Boothe's mortgage, and he had not done so, he could not recover. Both of these charges the court refused to give, and the defendant excepted. These matters are now assigned as error.

A. GRAHAM, for plaintiff in error, cited 1 Ala. R. 41.

WEBB, contra. The court correctly refused the first charge asked for, because, if Pippin purchased with a knowledge of Adams' possession, and rights, as appears from the bill of exceptions, Adams cannot be prejudiced, by a contract between the defendant and Huntington. The defence cannot be set up, because it is in the nature of a cross action for the fraud.