Simmons v. Williams, 27 Ala. 507

27 Ala. 507 | Ala. | 1855

GOLDTHWAITE, J.

At the common law, where there were mutual and disconnected demands, there could be no set-off, but each party was compelled to sue ; and equity, in such cases, followed the law, unless there was a natural equity which would authorize the interposition of that court.— Story’s Eq., §§ 1433, 1434. The “ natural equity”, which would justify the interference of a court of chancery, was held to exist in cases of mutual credits — that is, where the one debt was contracted on the credit of the other, (Story’s Eq., § 1435); or where some other circumstance, such as insolvency, intervened, which might result in the loss of the debt unless it was discounted. — Tuscumbia Railroad Co. v. Rhodes, 8 Ala. 206. But there is no case that we have found, which goes to the length of holding that the mere existence of mutual and independent debts would allow them to be set off in equity. If that was so, then, as was said by Lord Mansfield, in Green v. Farmer, 4 Burr. 2220, “ They would stop the course of the law, in all cases where there was a mutual demand.”

In the present case, there was no mutual credit; on the contrary, the demands are entirely distinct and independent of each other. The one is founded on the bond executed by Williams as the surety of Price, and is due to Simmons in his representative character, as the administrator de bonis non of Burns ; and the other is an individual liability of Simmons, based upon the collection of money on a decree which was afterwards reversed. It is true, that the decree on which the money was collected, was rendered in favor of Simmons against Price, on the final settlement of his accounts as the former administrator of Burns ; and the bill alleg'es that, subsequently to the payment of this money by Williams, and during the pendency of the suit to recover it back, another decree was rendered in favor of Simmons against Price; and that the liability of Williams for the payment of this decree was perfected by the issue of an execution, and return of no property, against his principal, Price. But, if it be conceded that these proceedings had the effect of rendering Williams liable on his bond for the amount of the last decree, we do not see that such liability would warrant the interference of equity. To do this, the demands must be connected in the way of mutual credits — there must be circumstances from which it can be inferred that the one debt was contracted on the credit of the other, or that there was an agreement between the parties that the one should be discounted'from the other, (Jeffs v. Wood, 2 P. Wms. 128 ; Story's Sq., § 1435); or there must be some other intervening equity, which would render the interposition of that court necessary for the protection of the demand sought to be set off. — Tuscumbia Railroad Co. v. Rhodes, supra.

Roebuck v. Dupuy. 7 Ala. 484, simply asserts, that where one pays a judgment, for a debt which he actually owes at the time of payment, and which could be recovered in the action brought, it is, in effect, but the payment of the debt, and he could not recover it back if tbe judgment was reversed ; but neither the principle of that case, nor that of Meredith v. Richardson, 10 Ala. 828, is applicable to the case at bar, for the reason that there was no debt or liability against Williams at the time he paid the money on the first decree, and the payment of it by him, could not, therefore, properly be referred to a future contingent demand. In other words, the mere fact that Williams afterwards became indebted to Simmons, did not authorize the latter to set off that debt in equity against a demand previously existing against him in favor of Williams.

In relation to the other grounds of equity, which have been noticed by the appellant, it is only necessary to observe, that if he has paid over the money which he wrongfully collected out of Williams, to insolvent distributees, it can. confer no rights as against the party from whom the amount was collected. He can reimburse himself out of the decree, on which he alleges Williams is responsible. That Williams has been indemnified by Price, does not affect the present suit, as its object, and the special relief prayed for, is to set off the claim of the appellant against the judgment Williams has recovered against him. The rule is, that under the prayer for general relief, when the bill is not filed in a double aspect, no relief can be granted, unless consistent with that specifically prayed for. — Thomason v. Smithson, 7 Port. 144; Pleasants v. Glasscock, 1 Sm. & M. Ch. 17; Story’s Eq. Pl., § 42; Dan. Ch. Pr. 435. To claim the right of set-off against a surety, and to insist that he should give up his indemnity, are wholly inconsistent.

Decree affirmed ; the appellant paying the costs of this court.

ChiltoN, O. J., and Bice, J., having been of counsel in this case before their election to the bench, the cause was heard before Goldthwaite, J., alone ; and he being of opinion that there was no error in the record, no statutory court was summoned.