1. Whilst it was the settled rule at common law that an agent who made a contract for his principal could not sue upon it in his own name, yet the rule had exceptions. One of these was, that if the agent had an interest, as for commissions, etc., he might sue on the whole contract in his own name. A judgment upon it in such a suit, where the agent acts for both himself and the principal, binds both: See 1 Chitty on Pleadings, page 7, and cases cited. Here the contract is with Price, naming him as the agent. Price clearly has an interest. He was employed by the principal to collect. Pie has, therefore, prima facie commissions. But he is specially interested, because, unless he can save this money, he may be liable to his principal for it. We think, therefore, that Price might file this plea — a quasi bill in equity — which he may do under our practice of mingling law and equity.
2. We are clear, too, that a fair construction of the written agreement includes the Sisson fi. fa. as among those which were to share in the proceeds of the lots, should it fail to be satisfied out of Wofford. Indeed, we do not see how any other meaning can be put on the words used in the agree*139ment. The special provision for the payment of the other fi. fas. out of the first money is rather in furtherance of, than contrary to, this view, since, if they wei’e to be first paid, the indication is pretty clear that something was to be second. And as, by the terms of the agreement, the Sisson fi. fa. was to be used with the hope of getting the money to pay it out of "Wofford’s property, the inference is strong that if this hope failed, it, the Sisson fi. fa., was to be the second referred to. We do not think Mr. Price’s testimony is in conflict with the note. He testifies only that the note was given for the land. He shows that Boyd bid off the land, as the written agreement provided; that he bought the land afterwards from Boyd, and gave this note, payable to the administrator, for the purchase money. All this testimony proves is, that this note represents the proceeds of the land sold under the agreement. It does not contradict the note; it only undertakes to identify the consideration for which it was given, and to fix it as part of the proceeds, which, by the written agreement, was to be disposed of in a particular way. This plea sets up no off-set. It does not claim that the note shall be met by the fi. fa. and declared satisfied; nor have the jury so found. They have, in fact, found for the plaintiff the principal and interest on the note, but they have, as a Court of equity, directed that the money, when collected, shall be paid to and be credited on the Sisson fi. fa. We think the verdict was right. The plea is an equitable defense. Price, as the agent of the plaintiffs in the fi. fa., and for himself, might have filed a bill to stop this fund and have it paid to the plaintiffs in the fi. fa., according to the agreement. His interest justifies him in doing this, and the case is to be looked at as though these plaintiffs had, in fact, filed a bill for this purpose. The verdict is just such a verdict as ought to have been found on such a bill.
3. Eor the same reason, the charge of the Court, as to the effect of the several judgments and orders of the Court, is not illegal. In this trial, Price acts for himself and his principals. He stands on their rights, and the jury were to try *140the case as though these principals were parties. Surely, the administrator, Field, who made the contract to which Lester and Brown testify, cannot now set up this agreement after he has suffered two judgments overruling illegalities filed by him, and after he has permitted this order reserving the lien of the Sisson fi. fa. Pie is estopped, after contending for ten years against the fi. fa., and after twice suffering judgments ordering it to proceed, from setting up a defense which he knew all the time existed, and which he' did not assert. To allow this to be done is trifling with the time and patience of the Courts. And if the evidencé, as it did, showed such judgments to have been rendered, it wás not improper for the Judge to tell the jury that they were of far stronger weight than parol evidence.' He might have gone.further and said they were conclusive; that they settled'the question as to the validity of the fi. fa. at the time they were' rendered.
