Chandler and Moore v. Lyon, et al. Moore seek to have the debt paid, by setting off one due in equity, and not at law, to Chandler. Chandler could not sue in his own name on the bills held by him, and therefore could not set them off. It makes no difference whatever, how near the defendant, Lyon, has accomplished his intention, a Court of equity can stop him at every point. [Treble v. Lane, 7 Monroe, 455; Montague, 61; 19 Vin. Ab. 469; Ex parte Blagden, 3 Bibb, 255; Hughes v. McConnell, 1 Bibb, 256; Dale v. Sallet, 4 Burr. 2133; Green v. Farmer, 4 Burr. 2221; James v. Kynnier, 5 Vesey, 110; Payne v. Loden, 1 Bibb, 518; Barclay v. Hart, 4 Burr. 1996; Talbot v. Warfield, 2 J. J. Marsh. 86; Talbot v. Banks, 2 J. J. Marsh. 548; Stewart v. Chamberlin, 6 Dana, 32; Merrel v. Fowler, 6 Dana, 305; Watkins v. Chamberlin, 8 Dana, 164; 6 Ib. 224; 14 John. 53; Chance v. Isaacs, 5 Paige, 592; Robbins v. Holly, 1 Monroe. 194.] GOLDTHWAITE, J.—1. The matters of fraud with respect to the transactions of the Wetumpka Trading Company, and the simulated death of Lyon, are so prominently set forth in the bill, that our first impression was, that these were the sole grounds on which relief was sought; but a more caerful examination has satisfied us, as it did the Chancellor, that the complainants are entitled to relief on the ground of set off. It sufficiently appears, from the bill and exhibits, that at the time Campbell, as the administrator of Lyon, commenced his suit against Moore and Chandler, the latter was the holder and owner of notes of the Wetumpka Trading Company, of which Lyon was a partner, if not the only individual composing it. The bills held by Chandler are payable to S. Jones, or bearer, and do not appear to have been assigned or indorsed by him. Now, whether Lyon was a partner, or the only member of this concern, it is evident he could not have been sued by Chandler in his own name. Consequently he could not have set off the bills to the suit against him and Moore, even if Lyon was the only person liable; but if he was a partner only, the liability of his personal representative was yet more remote. The same observations will apply to a defence of set off, made upon showing that the suit, though in the name of Lyon, was in fact for the benefit of the Wetumpka Trading Company. Chandler could not have sued them in his own name, and therefore under Chandler and Moore v. Lyon, et al. repeated decisions of this Court, could not have given the bills in evidence as a set off. [French v. Garner, 7 Porter, 549.] 2. It is a matter of no importance to the investigation of this suit, whether Lyon is dead or living, or whether the one or the other of the complainants are entitled to the relief. It is true, there is no mutuality in the debt reduced to judgment, under the statute of set off, but the decision recently made of Winston v. Metcalf, 6 Ala. Rep. 756, shows that a debt due to the principal debtor may be discounted when the surety is sued; and of course the same rule applies, where both are joined in the action. 3. The circumstance that such proceedings have been had, that a judgment has been obtained against the sheriff, by the administrator of Lyon, although it involves the case, and renders it more complex, does not stand in the way of relief, as that judgment is not in the nature of a penalty. It is only one mode which the law allows to a party to get at money which he is entitled to, but it gives him no right whatever to enforce that to which he has no claim in good conscience. 4. With respect to the objection, that Chandler is a particeps criminis in the illegal transaction of circulating the bills of the company, it is sufficient to say, that however that may be as to the bills received for the original loan, it does not appear to be so with respect to those which he afterwards obtained for the purpose of making payment. The question, therefore, is a fact not raised, to which our attention is called by the defendants' counsel. The form of the decree is not called in question by the errors assigned, and therefore the judgment here must be one of affirmance generally, and with costs. At a subsequent day of the term, Mr. PRYOR, for the plaintiff in error, submitted a motion to re-hear this cause; and called the attention of the Court to the decree made in the Kemper and Noxubee Co. v. Scheffelin, 5 Ala. Rep. 492. GOLDTHWAITE, J.-It is certain the case referred to by the plaintiffs, was overlooked by me when the opinion was written, nor did I at that time know of its existence. I may now be permitted to say, that I very fully accord with the principles there settled; but though this decision shows that the Chandler and Moore v. Lyon, et al. complainant, Chandler, might have either sued the company in his own name, or have asserted his set off against the suit by the administrator of Lyon, upon showing that the suit, though in this right, was in truth the suit of the company, yet he was not bound to do so. It is true, he asserts in his bill, that the suit against him in the name of Lyon's administrator was collusive, and that the interest in it remained in the Trading Company, but this is only one of the aspects of the case in which he is entitled to relief. The defence which he could have thus interposed to the suit at law, by going behind it, and showing that the bringing it in that name, was a fraud upon him, is a privilege which the law accords to him, but which involves no consequences, if he omits to make it in that manner. The argument amounts to this: the complainant kne wthe suit was a fraudulent and collusive one, and could have defeated it in that aspect; and because he omitted to do so, he ought to be deprived of his right to defend the suit, in the aspect inwhich it was fraudulently presented. We cannot yield our assent to this proposition. The administrator of Lyon brings the suit, and in that particular aspect the notes for which Lyon, in his lifetime, was jointly responsible, cannot be interposed as a set off, because the right of set off, does not exist at law, under such circumstances. The debt is gone against his representatives at law, except under peculiar circumstances, and in no condition of which could the liability sub modɔ, be asserted as a set off. It is stated in the bill, that Lyon and one Smith were the only partners of the company, known to the complainants, and that both were insolvent, as well as having absconded. Under this State of facts, a clear and well recognized equity existed, for Chandler to set off the notes held by him, against the judgment recovered by Lyon's administrator. This is one of the grounds for relief asserted by the bill, and meets the suit at law, as those interested in it have chosen to present it, and, in our judgment, it is no answer to the complainants to say, that if another State of facts asserted by them, is true; they could have had relief at law. It may be that they could, but as before stated, that privilege is accorded to those showing that the plaintiff is a simulated person, but they are not bound to do so. Motion denied. Martin, Adm'r, v. Hill. MARTIN, ADM'R, v. HILL. 1. Where a joint obligation would survive upon the death of one of the obligors, against his heirs and personal representatives, a judgment founded it, will also survive against them, upon the death of one of the parties to the judgment. 2. When a party to a suit in this Court dies, pending the suit, and it is abated as to him, it becomes several as to him, and is not merged in the judgment of this Court, against the other parties to the judgment, and their sureties. Error to the Circuit Court of Montgomery. THIS was a proceeding upon the settlement of the estate of Joseph Fitzpatrick. The defendant in error presented a claim against the estate, consisting of a judgment obtained by him in the Circuit Court of Macon, against the plaintiff's intestate, and others. For answer to this demand, the defendant pleaded, that the judgment aforesaid, was by the defendant thereto, taken to the Supreme Court, and bond given to supersede the execution. That whilst the suit was pending in the Supreme Court, the death of his intestate was suggested, and by the judgment of the Court, the suit was abated as to him, and judgment rendered against the other defendants to the judgment. To this plea, the claimant demurred, and the Court sustained the demurrer, and rendered judgment, from which this writ is prosecuted. The error assigned, is the sustaining the demurrer to the plea. A. MARTIN, for plaintiff in error, cited 4 Ala. Rep. 9; 6 id. 422. HARRIS, contra, cited 2 Saunders, 101. ORMOND, J.-We think this case is within the equity of the statute, providing that joint obligations shall survive against the representatives of the deceased obligors. [Clay's Dig. 323.] Judgments are not, it is true, specifically mentioned in the statute, but as the obligation itself would have survived, the judgment founded upon it must have the same attribute. 8 44 405 Kent v. Long. The principal reliance of the plaintiff in error, is upon the supposed merger of the judgment of the inferior Court, by the affirmance of that judgment in this Court, against the other defendants and their surety, as was held in Wiswall v. Munroe, 4 Alabama Reports, 9. By the death of Joseph Fitzpatrick, the original judgment, by the operation of the statute above referred to, became several, and might be revived against his representa tives; and if not revived, became a debt due from them to the plaintiff, upon which a suit might be brought. The prosecution of this claim in the Orphans' Court, is, in effect, the institution of a suit upon the judgment, which, we have seen, is maintainable. The merger of the judgment against the surviving defendants, has no influence whatever upon this question, as, by the death of Joseph Fitzpatrick, the judgment, as to him became several. Let the judgment be affirmed. KENT v. LONG. 1. The plaintiff, defendant and B. were joint sureties for Brown, in a bond executed pursuant to the statute, by the defendant, in an action of detinue; previous to the termination of the suit, the plaintiff endeavored to obtain possession of the property in controversy; this was resisted by the defendant, who was in possession of the same-saying he would keep it until the trial, and be responsible for its forthcoming. But instead of so doing, he delivered the property to the defendant in the action of detinue, who removed it without the State; by reason of which the plaintiff was put to great trouble and expense, and sustained damages, &c.: Held, that a declaration framed upon these facts, in case, was good on general demurrer. 2. A demurrer to a declaration containing several counts, will not be sustained, if either of them is good, unless there is a misjoinder of counts; in that case, it will be sustained, without reference to the sufficiency of the counts when detached from each other. 3. If "the declaration contains a substantial cause of action, and a material issue be tried thereon," the act of 1824 declares, that the cause will not be reversed, arrested, or otherwise set aside, after verdict, or judgment," for a defect in "the pleadings not previously objected to;" consequently, an ap |