Brashears v. Johnson

Cook, J., .delivered the opinion of the court. Appellant filed the following petition in the chancery court of Bolivar county, viz.: ‘ ‘ The petitioner, ~W. I. Brashears, respectfully shows: That at the time of the failure of said Bank of Gunnison, and the appointment of the receiver therefor, petitioner had on deposit to his credit in said bank one thousand three hundred and thirty-one dollars and ten cents. That petitioner is a member of the firm styled ‘ Gunnison Lumber Company,’ composed of petitioner and H. N. Alexander, as equal partner, and that said firm of Gunnison Lumber Company, at the time of such failure of said Bank of Gunnison, owed said bank the sum of one thousand eight hundred and fifty-five dollars and six cents, and that the said H. N. Alexander stands ready and willing, and individually, to pay his one-half of said debt to said Bank of Gunnison, as aforesaid. That petitioner and the said H. N. Alexander are each individually solvent, and that the said Gunnison Lumber Company is also solvent. “Petitioner is advised that in law and in equity he is entitled to offset against the said debt to the Gunnison Lumber Company to said Bank of Gunnison so much of [743] his said individual debt or credit of one thousand three hundred and thirty-one dollars and ten cents as will equal his one-half of the debt of said Gunnison Lumber Company to said Bank of Gunnison. “Wherefore he prays the decree of this honorable court authorizing and allowing the said receiver to make the offset above mentioned, upon payment in full by the sáid H. N. Alexander of his one-half of said debt of Gunnison Lumber Company; and petitioner further prays for such other and further general relief as to equity may seem meet, and as in duty bound he will ever pray,” etc. To this petition the following demurrer was interposed, viz.: “Now comes B. B. Johnson, receiver of the Bank of Gunnison, and demurs to the petition of W. I. Brashears, filed herein, and for causes of demurrer alleges and avers: “First. Because said petition shows that there is a lack of mutuality in the several accounts prayed to be set off one against the other. “Second. Because the said petition is insufficient in law'to entitle petitioner to the relief prayed for.” The demurrer was sustained, and petition dismissed; wherefore this appeal. In Peine v. Lewis, 64 Miss. 96, 8 So. 207, Judge Campbell, speaking for the court in a case ‘involving the precise point presented by this record, used this language: “The appellant’s proposition is not maintainable.” The same question was before the court for the first time in Bullard v. Dorsey, 7 Smedes & M. 13, wherein judge Shar-key rendered the opinion of the court, Judge ClaytoN dissenting, and again in Moody v. Willis, 41 Miss. 347. In Peyton v. Planters’ Compress, 63 Miss. 410, it is shown that there is no lack of harmony in the decisions of this court upon this question. See, also, Walker v. Hall, 66 Miss. 390, 6 So. 318. Affirmed.