Harrison and Sims vs. Henderson.

No. 24.-HILLSBURY R. HARRISON and BRITAIN SIMS, plaintiffs in error, vs. HENRY HENDERSON, defendant in error.

[1.] Where a suit was instituted on a joint and several note against H., as principal debtor, and S., as security-Held, that inasmuch as it appeared on the face of the record, that it was the separate debt of H., secured by the joint security of S., that H. might set off an open account which he held against the plaintiff for dealings between themselves under the statute.

Debt and set-off. From Coweta Superior Court. Tried before Judge HILL, September Term, 1847.

This action was founded upon a joint and several promissory note, made by Harrison as principal, and Sims as security. The case came on to be tried upon the appeal at the above Term, when a motion was made in behalf of Harrison, to reinstate a plea of set-off, filed by him at a former Term of the Court, (and which had been stricken out of the record by the order of the Court,) by way of amendment to his answer. The Court below overruled the motion, on the ground that the demand set forth in defendant's plea, so offered as an amendment to his answer, could not be allowed as a set-off under the statute, for the reason that the demand offered to be set off, and the demand of the plaintiff, were not mutual. The set-off sought to be pleaded, consisted of an open account in favor of Harrison against Henderson. To which decision of the Court below the plaintiff in error excepted.

BURCH, for the plaintiffs in error, made the following points:

1st. The note sued on is not a joint debt, but a joint security for a separate debt. 2 Story's Eq. sec. 1436.

2d. If this be a joint debt, it is also a separate debt, the note being joint and several, and a separate debt may be set off against a joint and separate debt. Crist vs. Brendle, 2 Rawle R. 121. 2 Term R. 32. 1 Paige's R. 585. Ashley vs. Willard, et al., 2 Tyler's R. 391. Mitchell vs. Gibbs, 2 Bay's R. 475.

3d. If the note were joint only, under the circumstances the setoff would be allowed in equity upon three grounds: 1st. The insolvency of the principal. Am. Ch. Dig. 521. Stewart et al. vs. Chamberlain, 6 Dana's R. 32. 1 Paige's R. 585. 2d. To prevent the trouble and cost of circuity of action. Tuttle vs. Becbee, 8 Johns.

Harrison and Sims vs. Henderson.

R. 156. Columbia M. Co. vs. Black, 18 Johns. R. 155. 3d. Surety's equity. 2 Story's Eq. sec. 1436. 18 Ves. 232. Dale vs. Cook, 4 Johns. Ch. R. 15.

4th. The surety may set up same defence at law as equity, if the facts are the same. 2 Swift's Dig. 152. King vs. Baldwin & Fowler, 2 Johns. Ch. R. 557. The People vs. Janeson, 7 Johns. R. 332.

5th. The surety is entitled to any defence the principal could set up. The Phonix Ins. Co. vs. Figuet, 7 Johns. R. 384.

RAY, represented by CHAPPELL, for the defendant in error.

By the Court-WARNER, J. delivering the opinion.

This action was founded on a joint and several promissory note, made by Harrison as principal, and Sims as security.

[1.] On the trial of the cause, the defendant, Harrison, made a motion to reinstate a plea of set-off, filed by him at a former Term of the Court, (and which was ordered to be stricken out of the record,) by way of an amendment to his answer. The Court overruled the motion to amend, on the ground that the demand set forth in the defendant's plea, so offered as an amendment to his answer, could not be allowed as a set-off under the statute, for the reason that the demand offered to be set off, and the demand of the plaintiff, were not mutual. The suit was in the name of Henderson, against Harrison, as principal debtor, and Sims, as his security. The demand proposed to be set off was an open account in favor of Harrison, against the plaintiff, for mutual dealings between themselves. By the Judiciary Act of 1799, it is declared, that where the plaintiff shall be indebted to the defendant, on open account for dealings between themselves, such defendant shall and may offer the same as a set-off, and on due proof, shall be allowed the same. Prince's Dig. 425. The objection urged against the setoff is, that the demand of the plaintiff is a joint demand, and the debt offered to be set off is the separate demand of Harrison, against the plaintiff. It is true, as a general rule, that a separate demand cannot be set off against a joint demand: but the plaintiff's demand here is several as well as joint. We must look to the original character of the contract; for the plaintiff, by pursuing his remedy against them as joint contractors, does not alter the original character of the contract itself. When we look at the

Barron vs. Chipman.

contract, we see it is the separate contract of Harrison with the plaintiff, secured by the joint security of Sims. Harrison being a defendant, to whom the plaintiff is indebted on open account, would seem to come within the letter of the statute, and we think within the reason and spirit of it, too.

The object of the statute was to prevent a multiplicity of suits, and, in our judgment, is a wise and beneficial statute, and ought to receive a liberal construction, so as to reach the equity of the parties when it can be done without a violation of any legal rule. 2 Story Eq. 664, section 1436. Exparte Hanson, 18th Vesey, 232. A difficulty was suggested against allowing the defendant's plea of set-off, under the statute, as to the verdict to be rendered by the jury. We think there can be no practical difficulty in that regard. If the plaintiff should be found to be indebted to Harrison, a larger sum than is due on the note, they will find a verdict for the defendant, Sims; and find a verdict in favor of the defendant, Harrison, for the balance which may be due him after extinguishing the amount due on the note, as provided by the statute. This being the separate debt of Harrison, as appears on the face of the record, secured by Sims as a joint security, the plaintiff cannot, in our judgment, by electing his remedy to sue them jointly, defeat the right of the principal debtor to plead his set-off under the statute; therefore, he ought to have been permitted to have amended his answer for that purpose.

Let the judgment of the Court below be reversed.

No. 25.—WILEY BARRON, plaintiff in error, vs. THOMAS W. CHIPMAN, defendant in error.

[1.] Failure of consideration is a good plea to a note given by the Sheriff, in discharge of a rule absolute against him, to pay the money due on an execution, when that rule is subsequently rescinded, as illegal and unjust.

Debt. Plea-Failure of consideration. Tried before Judge FLOYD, in Monroe Superior Court, September Term, 1847.

Barron vs. Chipman.

For the facts of the case, the reader is referred to the opinion delivered by the Supreme Court.

HUNTER & HARMON, for the plaintiff in error.

PINCKARD, for the defendant in error.

By the Court.-LUMPKIN, J. delivering the opinion.

Wiley Barron, the plaintiff in error, was security for Hugh Lockett to one Robert McInvail, and took for his indemnity a mortgage from his principal on some negroes. Having the debt to pay, he foreclosed his mortgage before a Justice of the Inferior Court, and placed the execution in the hands of Thomas W. Chipman, the (then) Sheriff of Monroe county, who levied on the property embraced in the mortgage, and advertised the same for sale, leaving it in the possession of Lockett. On the day of sale, instead of producing the negroes, Lockett made an affidavit of illegality to the mortgage execution, and again gave bond, under the Act of 1838, for the forthcoming of the property at the next Term of the Inferior Court. The illegality was dismissed and the execution ordered to proceed. The property was rëadvertised, but never delivered by the mortgagor; and at the ensuing Term of the Inferior Court, the Sheriff was ordered to pay to the mortgagee the amount of principal, interest and cost due upon his execution. He gave his note, with Elbridge G. Cabiness and Allen Cochran, securities, for the sum due Barron.

The note, not having been paid at maturity, was sued, and the defendants pleaded, among other things, failure of consideration. Pending this action, an application was made, on notice to Wiley Barron, to the Inferior Court, to rescind the rule absolute originally granted against the Sheriff, and it was done-the judgment of rescision declaring the rule absolute illegal, unjust, null and void.

Barron certioraried this proceeding of the Inferior Court, and the Superior Court set it aside. An appeal was taken to this Court by Chipman, and the judgment of the Circuit Court was reversed thereby affirming the decision of the Inferior Court.

When the cause came on for final trial on the note, Judge Floyd charged the jury, that if they believed from the evidence that the note in controversy was given solely in consideration of

Barron vs. Chipman.

the rule absolute granted against Chipman, that inasmuch as that rule had been pronounced by a Court of competent jurisdiction to be illegal and void, that the plaintiff must fail. If, on the other hand, they should find that the note was given in whole or in part upon any other consideration, then their verdict should be against the defendants.

[1.] The presiding Judge was asked to charge and did give instructions on various other points; but after carefully scrutinizing the record, we believe that the finding of the jury has established that the note was given solely on account of the liability of Chipman, on the rule absolute, and that, therefore, it is only necessary to examine a single point in the bill of exceptions. And that is, whether or not the Court below erred in holding that, upon the recision of the rule absolute, the consideration of the note wholly failed? And the right adjudication of that question, must depend upon the legal effect of that rescinding order.

It is contended by the counsel for the plaintiff in error, and we think properly, that the execution of the note by the Sheriff, was a satisfaction or extinguishment of the rule absolute. But the question is, how did the reversal of that rule absolute leave the parties?

A reversal of a prior judgment is a reversal of a judgment recovered on such prior judgment. Waldron vs. Ely, 1 Penn. R. 79. Stillman vs. Ackley, ib. 165.

The reversal of the original judgment reverses a judgment upon a bond for the prison limits. Anderson vs. Radley, 2 Penn. R.800. Where A., having recovered judgment against B., extended his execution upon certain real estate, whereby he became tenant in common with C., against whom he subsequently recovered judgment for the rents and profits accruing during the tenancy in common, and A.'s judgment against B. was afterwards reversed for error, it was held, that C. might recover back the rents and profits paid by him, though the judgment whereon they were paid was unreversed. Lagell vs. Miller, 15 Mass. R. 207.

A judgment which is for any cause reversed, can have no legal effect whatever, and if money be paid on it, it may be recovered back in an action of assumpsit for money had and received. 2 Root, 156. 2 Day, 153. 2 Chip. 103. 10 Wend. 354. 6 Cowen, 297. 5 Stewart & Porter, 119. 1 Harris & Johnson, 405. 13 Serg. & Rawle, 292.