Bullock v. Brown, No. 85

No. 85 | Ga. | Jun 15, 1856

By the Court.

Benning, J.

delivering opinion.

The decision complained of was a decision striking out those parts of the answer that set up payment of the debts of the intestate by Butler. The reason given for the decision was, not that such payments did not constitute a defence, but that though constituting a defence, the defence was one of which the defendant could not avail himself by answer, but only by cross-bill.

We agree with the Court that such payments would constitute a defence.

The person who made them, Butler, the temporary administrator, must have made them either as rightful administrator or as executor of his own wrong; for the administration had been committed to no other person, and the payments were acts of intermeddling with the estate.

But if he made them in either character, he was entitled', to plead them as rightful acts — as acts which he was justified* in performing — as acts of due administration. Even an executor of his own wrong will be protected in paying the debts. of the intestate, if he pays them in their due order. (Com. Dig. Adm’r, c. 3; Bac. Abr. Executors, b. 3.)

[1.] But we cannot agree with the Court, that the defence is one which can be made available to the defendant in the bill only by being presented in a cross bill. The defence is one on which, as it stands in the answer, issue can be taken. It is, therefore, one which can be reached by the decree. What more could a cross-bill effect? If the defendant in a bill can get full relief by answer, he is not entitled to a cross-bill.

And the defendant in this bill can. It is no part of the relief to which he is entitled, that he should have a decree ■ against the complaint. When he prevents the complainant’from getting a decree against him, he completely protects-himself.

Wo therefore think that the Court erred in its judgment,. striking out- parts of the answer.