Pinkston v. Taliaferro. authorize a 'suit for contribution. The debt being extinguished, is in law a payment. [11 Johns. Rep. 518; 8 Ib. 206; 6 Cow. 470; 5 Wend. 85; 19 Id. 423; 2 Esp. R. 571.] . ORMOND, J-The depositions in the cause being published, and it being ready for a hearing, the defendant had not the right, as a matter of course, to amend his answer, and the refusal of the Chancellor to permit the amendment, to be made, cannot therefore be reviewed in this court. We need not enter upon the inquiry, whether the administrator could be compelled to retain in his hands that portion of the assets which may be allotted to him on the final settlemeut of the estate of his intestate, as it cannot be known until the final settlement and order of distribution, what that sum will be. It is very clear, however, that the complainant must be taken to have acted on behalf of his co-surety, as well as himself, in asserting his claim before the Orphans' Court, for the money he has paid for his principal, whilst he is at the same time prosecuting a suit against his co-surety for contribution. The result of his obtaining a decree against the co-surety, will be, to make him equally interested with himself in the judgment which may be obtained in the Orphans' Court, and being in his name, he will be a trustee for his co-surety for one half the amount. The only debateable question in the case, is, whether the complainant has made such a payment of the debt of the principal, as will authorize him to proceed against his cosurety for contribution. In this case, it appears the complainant made a new contract with the Bank, the creditor, by paying a portion of the debt in money, and executing his note, with sureties provided by himself, for the residue ; upon the receipt of which the original debt was discharged, and the note given up to the complainant. This is such a payment as will authorize the surety to bring his action for contribution. [Robertson v. Maxcey, 6 Dana, 101; Weatherby v. Mann, 11 Johns. 518.] It cannot be doubted, that if he had compounded with the Bank, and discharged the original debt, with a less sum than the amount due, the agreement would inure to the benefit of the co-surety. This re Johnson & Norris v. McLaughlin. sults from the fact, that the right to contribution does not arise from contract, but from equitable considerations, springing from the relation they bear to each other, and from the fact that they have a common interest, and a common burthen to bear. Any advantage, therefore, gained by one in the payment of the debt, must be for the benefit of all. Here no advantage has been gained. The original debt is discharged by one surety, who has secured its payment to the satisfaction of the creditor, and this as it regards the other surety, is precisely equivalent to a payment in money. Decree affirmed. JOHNSON & NORRIS V. MCLAUGHLIN. 1. Where the sheriff is the defendant in a judgment, either in his own right, or as an administrator, an execution issued thereon, whether in form a fieri facias, or a venditioni exponas, should be addressed to the coroner, and if it is directed to the sheriff, and placed in his hands to be executed, himself and sureties are not liable on the summary remedy provided by statute for a default in failing to return it. And in such case, if the execution does not show, that the sheriff is the defendant therein, he may plead the fact as a defence, and establish it by extrinsic proof. 2. Although it may not be an available error to strike out a bad plea, yet a plea which would be good on demurrer, cannot be stricken out on motion. Error to the Circuit Court of Perry. THIS was a motion at the suit of the plaintiffs in error, against the defendant, McLaughlin, as sheriff of Perry, and the sureties in his official bond, for the failure to return a writ of execution in the nature of a venditioni exponas. The judgment upon which the process was founded, was recovered in the County Court, by the plaintiff, against McLaughlin, ex officio administrator de bonis non of George Y. W. Sorrelle v. Craig, Adm'r, &c. ed in purchasing negroes elsewhere, to be sold in Alabama; this business was continued up to 1835, at which time mo ́ney could not be made of him by execution. To this evi dence the defendant objected, and moved the court to exclude the same as irrelevant to the issues, but the objection was overruled. The plaintiff then offered witnesses to impeach the character of Wiley J. Sorrelle, who had given evidence on behalf of the defendant. One of the witnesses introduced for this purpose, stated, that he was acquainted with the general character of the impeached witness, and would not believe him on oath. But being cross-examined, he stated that he lived twenty miles distant from him, and did not know in what estimation he was held in the neighborhood of his residence; thereupon the defendant prayed the court to exclude the testimony impeaching the witness, Sorrelle's character for veracity, but the prayer was refused by the court. Another witness adduced by the plaintiff, stated that he did not know the character of Wiley J. Sorrelle, for truth, amongst his neighbors, but did know his general reputation as connected with some alledged frauds; whereupon he was asked whether, from that general reputation, the impeached witness was entitled to belief on his oath; to this question, the defendant objected, but his objection was overruled, and the witness answered in the negative. At eleven o'clock on Saturday night, the jury retired to consider of their verdict. It was agreed that the verdict might be received by the clerk, in the absence of the Judge. At five o'clock on Sunday morning, the jury delivered their verdict to the clerk and dispersed, and the same was afterwards recorded and made the basis of the judgment of the court. On Monday, the defendant moved the court to set aside the judgment, and allow the cause to stand continued, as if no verdict had been rendered, on the ground that the court could not lawfully sit on Sunday, and the jury had dispersed, and were not then present to perfect their verdict; but this motion was overruled by the court. At the close of the last paragraph, the court say, "the correctness of the foregoing is admitted, but the defendant had Sorrelle v. Craig, Adm'r, &c. submitted a motion for a new trial on different grounds, which had been overruled, and although it was inadvertently omitted to require him to say which he would waive, yet being satisfied with the verdict, and these matters not having influenced it, (as is believed,) the Judge declines to sign this as a bill of exceptions, unless the Supreme Court should deem it the party's right to have it signed, after a motion for a new trial overruled." G. R. EVANS for the plaintiff in error, made these points, viz: 1. The evidence as to the business, supposed insolvency, &c. of the defendant below, in 1835, and previously, was irrelevant, calculated to mislead the jury, and consequently inadmissible. [1 Starkie's Ev. 386; 5 Ala. Rep. 38; 11 Mass. Rep. 140; Pet. C. C. Rep. 85; 5 Ala. Rep. 731.] 2. Neither of the witnesses adduced by the plaintiff to discredit the defendant's witness, manifested such an acquaintance with his general character, as made them competent to speak to his veracity. The second witness did not profess such an acquaintance, but merely that he had a knowledge of his "general reputation as connected with certain alledged frauds." [2 Wend. Rep. 352, 558; 14 Wend. R. 105; 18 Id. 146; 13 Johns. R. 504; 11 Sergt. & R. Rep. 198.] 3. The reception of the verdict on Sunday, was clearly unauthorized by law. [Clay's Dig. 592, §§ 1, 3; 9 Porter's R. 151; 5 Ala. R. 407; 6 Ala. R. 200.] 3. A motion for a new trial, if overruled, does not amount to a waiver of a bill of exceptions. [9 Porter's Rep. 104.] C. G. EDWARDS, for the defendant in error, insisted, that the paper which had been signed and sealed as a bill of exceptions by the Circuit Judge, could not be treated as such. He never intended that it should thus operate; and this court will not allow it. Upon the errors assigned he was willing to submit the cause, if it should be determined there was a bill of exceptions. COLLIER, C. J.-The evidence adduced by the plaintiff Sorrelle v. Craig, Adm'r, &c. in respect to the defendant "having been unsuccessful as a merchant; his residence with his father, the testator; his engaging in a trade for several years which required a considerable cash capital; and his supposed inability to pay his debts two years previous to making the notes declared on, certa ly do not warrant the inference that the off sets relied on as a defence, had been allowed him against a previous indebtedness to the testator. Such testimony does not show that he was indebted to his father, either for money lent, or upon any other account than the notes indicate. The most liberal interpretation of the facts, only leads to the conclusion, that the plaintiff had received money from some one to enable him to carry on trade. But it cannot be assumed in the absence of all proof to the point, that funds were advanced to him by any one in particular. If money was lent by the testator, there is nothing to repel the inference that the notes in question were not upon a subsequent settlement given for the repayment of what was due to him. The bill of excep tions does not state the date of the sets off relied on; if they were due when the notes were made, it might be reasonably intended that they were settled, and the notes showed the balance due; but if the sets off were of a later date no such presumption could be indulged. The court always protect the jury from irrelevant testimony, by excluding it on objection, in the same manner as it rejects other incompetent proof. If evidence be irrelevant at the time it is offered, it is not error to reject it, because other evidence may afterwards be given, in connection with which it would become competent. If it would be relevant in conjunction with other facts, it should be proposed in connection with those facts, and an offer to follow the evidence proposed, with proof of those facts at a proper time. [Mardis' Adm'r v. Shackleford, 4 Ala. Rep. 493, and cases cited.] This view of the law may suffice to show, that if the bill of exceptions states the facts fully, the testimony should have been excluded for irrelevancy. [Greenl. on Ev. 59 to 63; 5 Ala. Rep. 731.] In impeaching the credit of a witness, the examination must be confined to his general reputation, and will not be permitted as to particular facts; for every man is supposed to |