Mitchell v. Burt

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 [228] 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, th&t the set off should have been allowed, and therefore the error of the charge is apparent. Judgment reversed and remanded,