Simmons v. Williams. duce into a court of equity the subject-matter of a suit at law; and the defences of non est factum, release, &c., would come up. 2. There is no mutuality between the debts; the debt to Williams being due from Simmons personally, while that owing to Simmons (if any at all) is due him as administrator of Burns.-Murray v. Toland, 3 Johns. Ch. 569; Dale v. Cook, 4 ib. 11; Gayle v. Luttrell, 1 Y. & Jerv. 180; Lamme v. Saunders, 1 Mon. 267. 3. If the demands were mutual, there would still be no equity in favor of Simmons as against Williams, and therefore no cause for a resort to chancery.-Cave v. Webb, 22 Ala. 583; Wathen's Executor v. Chamberlain, 8 Dana, 164; Stewart & Co. v. Chamberlain, 6 ib. 32. GOLDTHWAITE, J.-At the common law, where there were mutual and disconnected demands, there could be no set-off, but each party was compelled to sue; and equity, in such cases, followed the law, unless there was a natural equity which would authorize the interposition of that court.Story's Eq.. $$ 1433, 1434. The "natural equity", which would justify the interference of a court of chancery, was held to exist in cases of mutual credits-that is, where the one debt was contracted on the credit of the other, (Story's Eq., § 1435); or where some other circumstance, such as insolvency, intervened, which might result in the loss of the debt unless it was discounted.-Tuscumbia Railroad Co. v. Rhodes, 8 Ala. 206. But there is no case that we have found, which goes to the length of holding that the mere existence of mutual and independent debts would allow them to be set off in equity. If that was so, then, as was said by Lord Mansfield, in Green v. Farmer, 4 Burr. 2220, "They would stop the course of the law, in all cases where there was a mutual demand." In the present case, there was no mutual credit; on the contrary, the demands are entirely distinct and independent of each other. The one is founded on the bond executed by Williams as the surety of Price, and is due to Simmons in his representative character, as the administrator de bonis non of Burns; and the other is an individual liability of Simmons, based upon the collection of money on a decree which was afterwards reversed. It is true, that the decree on which the Simmons v. Williams. money was collected, was rendered in favor of Simmons against Price, on the final settlement of his accounts as the former administrator of Burns; and the bill alleges that, subsequently to the payment of this money by Williams, and during the pendency of the suit to recover it back, another decree was rendered in favor of Simmons against Price; and that the liability of Williams for the payment of this decree was perfected by the issue of an execution, and return of no property, against his principal, Price. But, if it be conceded that these proceedings had the effect of rendering Williams liable on his bond for the amount of the last decree, we do not see that such liability would warrant the interference of equity. To do this, the demands must be connected in the way of mutual credits-there must be circumstances from which it can be inferred that the one debt was contracted on the credit of the other, or that there was an agreement between the parties that the one should be discounted from the other, (Jeff's v. Wood, 2 P. Wms. 128; Story's Eq., § 1435); or there must be some other intervening equity, which would render the interposition of that court necessary for the protection of the demand sought to be set off.-Tuscumbia Railroad Co. v. Rhodes, supra. Roebuck v. Dupuy, 7 Ala. 484, simply asserts, that where one pays a judgment, for a debt which he actually owes at the time of payment, and which could be recovered in the action brought, it is, in effect, but the payment of the debt, and he could not recover it back if the judgment was reversed; but neither the principle of that case, nor that of Meredith v. Richardson, 10 Ala. 828, is applicable to the case at bar, for the reason that there was no debt or liability against Williams at the time he paid the money on the first decree, and the payment of it by him, could not, therefore, properly be referred to a future contingent demand. In other words, the mere fact that Williams afterwards became indebted to Simmons, did not authorize the latter to set off that debt in equity against a demand previously existing against him in favor of Williams. In relation to the other grounds of equity, which have been noticed by the appellant, it is only necessary to observe, that if he has paid over the money which he wrongfully collected Watson v. Hutto. out of Williams, to insolvent distributees, it can confer no rights as against the party from whom the amount was collected. He can reimburse himself out of the decree, on which he alleges Williams is responsible. That Williams has been indemnified by Price, does not affect the present suit, as its object, and the special relief prayed for, is to set off the claim of the appellant against the judgment Williams has recovered against him. The rule is, that under the prayer for general relief, when the bill is not filed in a double aspect, no relief can be granted, unless consistent with that specifically prayed for.-Thomason v. Smithson, 7 Port. 144; Pleasants v. Glasscock, 1 Sm. & M. Ch. 17; Story's Eq. Pl., § 42; Dan. Ch. Pr. 435. To claim the right of set-off against a surety, and to insist that he should give up his indemnity, are wholly inconsistent. Decree affirmed; the appellant paying the costs of this court. CHILTON, C. J., and RICE, J., having been of counsel in this case before their election to the bench, the cause was heard before GOLDTHWAITE, J., alone; and he being of opinion that there was no error in the record, no statutory court was summoned. WATSON vs. HUTTO. [MOTION TO QUASH EXECUTION AND ENTER SATISFACTION OF DECREE.] 1. Conclusiveness of final decree of probate court.-A decree of the probate court, rendered on the final settlement of an estate, ascertaining and adjudging to each distributee his share of the estate, is as final and conclusive as a decree in chancery or a judgment at law; and after the expiration of the term at which it is rendered, a motion to enter satisfaction, and to quash an execution issued on it, upon grounds which go only to matters behind the decree, cannot be granted, although such matters may be true in point of fact. APPEAL from the Court of Probate of Henry. Watson v. Hutto. THE record in this case shows these facts: On the final settlement of the estate of David Watson, by Solomon Hutto his administrator, on the 10th August, 1853, a decree was rendered in favor of Mrs. Elizabeth Watson, the widow of the intestate, for $514 15, as her distributive share of the estate; but as this decree is nowhere set out in the record. its terms cannot be stated. On the 10th February, 1854, an execution was issued on this decree, against the said administrator, and was levied on a slave as his property. The defendant, in vacation, before the return term of the execution, moved the court to quash the execution, and to enter satisfaction of the decree, "on the ground that the same has been fully paid and satisfied, as per plaintiff's receipt." On the trial of this motion, the plaintiff therein offered in evidence, after proving its execution, a writing under seal, signed by Mrs. Elizabeth Watson, and dated January 17, 1852, which was in these words : "This is to certify, that I, Elizabeth Watson, wife of David Watson, sen., has this day received full and final compensation from Solomon Hutto, guardian of the said David Watson; and further aver, that I will never ask, sue, plead or implead any asset from the said Watson's estate. And I do hereby relinquish all right and title to any claim that I may have against said estate, unto the said Hutto, &c.; and this is a full and final receipt from me forever, and shall be considered my own voluntary act and doing. Given under my hand and seal", &c. It was proved that the consideration of this instrument was $350, which was paid at the time of its execution, part in money and part in notes. There was other evidence in relation to matters connected with this writing, but it is unnecessary to state them. On all the evidence adduced, which is set out in the bill of exceptions, "the court decided the contract binding, and sustained the motion to quash the execution." To this ruling of the court, with others, the defendant in the motion excepted, and it is here assigned for error. JAMES L. PUGH, for the appellant. NAT. HARRIS, contra. May & Bell v. Miller & Co. RICE, J.-The decree of the probate court, on the final settlement of the estate, adjudging to the appellant her distributive share, is as conclusive as a decree in chancery, or a judgment of a circuit court. Where the defendant in such decree, after the expiration of the term at which it was rendered, makes a motion to enter satisfaction of it, and to quash the execution issued under it, upon grounds which go only to matters behind the decree, the motion cannot be granted, although such grounds may be true in point of fact.--Slatter v. Glover, 14 Ala. R. 648; Marshal v. Candler, 21 ib. 490; Burt v. Hughes, 11 ib. 571; Powell v. Washington, 15 ib. 803; Bondurant v. Thompson, 15 ib. 202. We deem it unnecessary to decide any other question presented by the record, as what we have above decided will likely put an end to the motion. For the error of the court below in granting the motion, its decree is reversed, and the cause remanded. MAY & BELL vs. MILLER & CO. [ACTION UNDER CODE AGAINST OWNERS OF STEAMBOAT, ON BILL OF EXCHANGE DRAWN BY CAPTAIN, FOR REPAIRS.] 1. Bill not admissible under common counts, unless proved.-A bill of exchange is not admissible evidence under the common counts, unless its execution is proved. 2. Variance between instrument declared on and that offered in evidence.-Whatever may be the effect of the provisions of the Code, on objection raised to the complaint, in dispensing with the necessity for the same technical precision which was formerly required in a declaration; yet where the instrument offered in evidence varies from that described in the complaint, the variance renders it inadmissible. 3. Drawer's name must be inserted or subscribed.-To hold one liable as the drawer of a bill, his name must be either inserted in it or subscribed to it. APPEAL from the City Court of Mobile. |