Hagerthy v. Bradford. The defendant then gave evidence to show, that in 1838, Pou resided in Macon county, and continued there until 1841, when he removed from the State. It was further in evidence, that the note pleaded as a set off to plaintiff's suit against Pou, was made after the dissolution of the firm of Harbin & Harris, and had no relation to the business of that firm, and was made without the authority, knowledge, or consent of Harris, the other member of the firm; but of this dissolution no notice was given, and that previous to Pou's receiving the note, he had notice that the transfer of the note made by him, was intended, but there was no notice of its actual transfer. On this state of proof the court charged, the jury 1. That under the counts for money paid, &c., if the jury believed the note set off by Pou, in the suit against him, was a set off in his hands, at the time of the transfer to the plaintiff of the note indorsed by the defendant, this circumstance would dispense with the necessity for the plaintiff to sue Pou to the first court of the county of his residence, and would entitle the plaintiff to a recovery to the extent of the set off. The defendant requested the court to charge the jury 2. That if the information given to Hagerthy, of the plea, of set off, was given only in the way of inquiry, and not as notice to him to attend to the suit against Pou, then the de-, fendant might show, the note allowed as a set off was not in fact a set off; and if they were satisfied that the note was not a set off, then the plaintiff could not recover the amount of that note. This was refused, and the court instructed the. jury That if the information given to the defendant, of the set off, was not intended by the plaintiff as a notice to attend to the suit against Pou; or was not given in such a manner as to signify to the defendant, that the plaintiff' would, expect the defendant to attend to that suit, then the defendant was not bound by the verdict in that suit, and might show the note offered then as a set off, was in fact no set off; and if, under the circumstances, they were satisfied that note was not a set off, the plaintiff was not entitled to recover its amount. Hagerthy v. Bradford. The refusal to give the charge asked, as well as those given, were excepted to by the defendant, and are now assigned as error. ELMORE, for the plaintiff in error, insisted that the existence of a set off against the payee of an assigned note, will not dispense with the diligence required by the statute. The fact of set off will not dispense with demand and notice, when the paper is negotiable. [Rathbone v. Bradford, 1 Ala. Rep. 314; Riddle v. Rourke, Ib. 395; Ryland v. Bates, 4 Ib. 343; Bates v. Ryland, 6 Ib. 667.] J. E. BELSER, contra, argued 1. The charge first given, is sustained by many authorities. [2 Verm. 193; 9 Mass. 1; 2 Stew. 512; 1 Porter, 313.] 2. The charge asked for is less favorable than the one which the court gave, in response to the defendant's request, and the court would not reverse in such a condition of the charge. [1 Ala. Rep. 452; 7 Ib. 162; Yarborough v. Moss, January term, 1846.] 3. It was unnecessary for the plaintiff to show any thing beyond his failure to recover, as the suit against Pou is conclusive against the indorser. [5 Pick. 380; 2 Hay. 351; 14 Johns. 81; 4 Ala. Rep. 707; 7 Ala. Rep. 27; 6 Wend. 620.] 4. The verdict being for the entire amount of the note, shows that the jury determined the residence of Pou was in Tallapoosa, when sued there, and therefore if there is abstract error in the first charge, the court ought not to reverse, inasmuch as the error has not entered into the verdict. [3 Ala. Rep. 599.] GOLDTHWAITE, J.-1. The suit which the assignee of notes, not negotiable as commercial paper, is required to commence against the maker at the first court to which he can be sued, in the county of his residence, (Dig. 383, § 12,) has always been understood to have the same relation to the indorser's liability, as demand and notice has, when the pader is negotiable, or commercial. [Ryland v. Bates, 4 Ala. Rep. 343.] From the very nature of this contract, by the Hagerthy v. Bradford. indorser, there must be many exceptions to the rule provided by the statute, but we are not aware, that the fact of a set off against the payee, who is not also the indorser, is one. The circumstance that such a set off exists, does not enter into the consideration of the note, nor, in general, is it an equity which attaches to it. The cases cited by the plaintiff's counsel, so far as we have had opportunity to examine them, do not reach the case of a set off, but show, that when the consideration of the note fails, or is illegal, this may sometimes excuse the omission to give notice, and by analogy, the omission to sue. [Gee v. Williamson, 2 Stew. 512; S. C. 1 Porter, 313; Carl v. McDougall, 9 Mass. 1.] We say may sometimes excuse, because it is by no means clear, that it will be so when the suit is against an indorser who, as here, is not the payee. There is a very strong reason why set off should not stand on the same ground with failure of consideration, illegality or other defence, inherent to the note, and that is, the party is not obliged to avail himself of the privilege of set off, but may, when he chooses, resort to his cross action. Upon the best consideration we can give this question, we think the existence of a set off against the payee who is not the indorser, does not relieve the holder from his obligation to sue at the first term. 2. In this connection, we shall notice the argument that the finding of the jury is for the entire sum of the note, from which we are called to infer the erroneous charge, did not in fact enter into the verdict which, as the counsel insists, must have been returned on the contested point as to the residence of the maker, when the suit was instituted against him in Tallapoosa county. It may be the jury determined so, but the answer to the present argument is, that the fact cannot certainly appear to us, and even in the event the verdict was improper, the court below might not have felt bound to award a new trial. As error is clearly shown in one part of the case, it can only be relieved by other disclosures in the record, showing, beyond a reasonable doubt, that injury did not result from the error. [Shehan v. Hampton, at this term.] 3. Upon the other point in the case, we omit to scrutinize the correctness of the charge asked for, as well as that given Hagerthy v. Bradford. in lieu of it, and shall deem our duty discharged, in stating what rules govern the remedy against the indorser, when the assignee fails in maintaining his suit against the maker, commenced in accordance with the statute. If the analogy be tween the suit under the act, and demand and notice, is carried to the extent of holding, that the mere want of success against the maker, will authorize a recovery against the indorser, and preclude him from showing that the defence was improperly allowed, in cases where no notice was given of the pendency of the action, it would possibly introduce mis-. chiefs which never were contemplated by the framers of the law, and permit a recovery, when the loss of the suit against the maker is entirely the result of either negligence or mismanagement. On the other hand, the remedy will be almost valueless, if the party is compelled to enter into a new contest with the indorser, and be obliged to prove over again the defence of the maker. Warranties of personal property will more appropriately furnish the analogies by which the remedy of the indorsee is to be governed in the absence of direct decisions, or statutes similar to our own. The general rule is, that when a suit is commenced by a stranger, and notice is given to the warrantor, he is responsible for the damages recovered, and is concluded by the verdict. We think the same rule must apply when the indorser is notified of the pendency of the suit against the maker, or advised of any defence interposed; as, with respect to the action, he occupies a very similar position with a vendor. [See Salle v. Light, 4 Ala. R. 700, and cases there cited; Gardner v. Goodloe, 2 Hayw. 351.] But what is the rule when no notice has been given? In Scales v. Wilson, 9 Leigh, 473, the assignee of a bond in Virginia, submitted his action against the obligor to arbitration, and it was awarded in favor of the obligor, on account of sets off against the assignor. On a suit against the assignor, he insisted he was not bound by the judgment on the arbitration; but the court held, it was prima facie obligatory on him. In Train v. Gold, 5 Pick. 380, one not connected with a suit, had undertaken to indemnify an officer for a levy, and he was held prima facie bound by a judgment against the officer, although obtained without notice to the indemni Pierce v. Brassfield, et al. tor. These cases will authorize us in the conclusion, that the judgment in favor of the maker, upon the merits of the note, is in all cases prima facie evidence against the indorser, and that it rests with him to show, the defence then interposed was invalid. Without further extending our opinion, it is likely what we have said will suffice for the decision of this cause when tried again. For the error noticed, the judgment is reversed and the cause remanded. PIERCE v. BRASSFIELD, ET AL. 1. Upon a bill filed to rescind a contract for the sale of land, upon the allegation that the vendor fraudulently represented that a portion of the tract included in the bond for title, was contiguous to the residue, when in truth it was remote from it, and did not adjoin the other lands, the vendee is not entitled to relief by way of compensation, although the vendor admits there was a mistake, and a portion of the land sold omitted out of the bond for title, and another portion not sold inserted. 2. Where lands have been omitted out of a contract by mistake, which is afterwards corrected by a Court of Chancery-Quere? will judgments obtained against the vendor, after the contract was made, but before its correction, have a lien upon it? Error to the Chancery Court of Greene. THE bill was filed by the plaintiff in error, and alledges, that the defendant, Brassfield, represented himself to be the owner of certain lands in Sumter county, which are particularly described, containing four hundred and fifty acres. That he sold the same to the complainant for $2,880, payable by four instalments, of $720 each, on the 1st January, 1837-8-9 and 40, and executed his bond for title, as soon as |