Johnson v. Gaines. the testimony taken before the master, that the complainant had sought an adjustment, and that this defendant had refused to yield the right to the judgment, unless the complainant would extinguish the demand which the defendant set up against him. The bill is not for a discovery merely, but it is for relief also, and should not have been dismissed, because its allegations were denied by the answer of the defendant Dunn. It is competent for the complainant to make out his case by evidence; and the assumption that the allegata and probata do not correspond, can not be supported. In respect to the question of costs, it sufficiently appears from what has been said, that the defendant was not free from fault, and we can not say that he has been improperly taxed with a part of the costs. Our conclusion, from a view of the entire case, is, that the decree must be affirmed, with costs. JOHNSON v. GAINES. 1. Although the writ, and declaration, may describe the defendant as an executor, yet if the declaration shows that the action cannot be maintained against him in his representative capacity, it wiil be considered as a de scription merely of the person, and a judgment will be rendered against him in his individual character. Error to the County Court of Mobile. ASSUMPSIT by the plaintiff, against the defendant in error. The writ issued against the defendant in error and Abner S. Lipscomb, executors of Catharine V. George, deceased, which was returned executed on Gaines, and not found as to Lipscomb. The declaration alledges that Abner S. Lipscomb, at the time the writ issued, and ever since, has not resided within the State of Alabama, but is without the jurisdiction of the Court, and has no Johnson v. Gaines. property or estate within the State of Alabama, and discontinues the action as to him. The indebtedness is charged to be for work and labor, &c. done, performed, and bestowed, in and about the business of the said defendant, as executor aforesaid, and at his special instance and request; also for money paid, laid out and expended, and money had and received to, and for the use of the plaintiff; and also upon an account stated. And being so indebted, he the said defendant, in consideration thereof, &c. To this declaration the defendant demurred, and the Court sustained the demurrer, and rendered judgment for the defendant. SEWALL, for plaintiff in error, contended, that the only proper judgment that could be rendered upon the declaration, was, a judgment de bonis propriis; that the allegation that he was an executor, was a mere description of the person. He cited 4th Ala. 271; 1 H. B. 108; 7 Taunton, 586; 4 Term, 347. As to the right to proceed against one executor, when the other leaves the State, he cited 5 Mass. 195; 9 Conn. 437; 8 Porter, 584; 2 Ala. 126. J. HALL, contra, contended, that at all events, there was a misjoinder of counts, which was fatal on demurrer. [2 Porter, 33; Minor, 276; 1 Chitty's Pl. 208; 6 Ala. 544.] ORMOND, J.-It is probable this action was commenced, upon the mistaken supposition, that the estate was responsible for debts created by the executor, and that it was the intention to sue the executor as such. Be this as it may, it is very clear the declaration shows, that no action can be maintained against the defendant in his representative character, as the debt was created by him, since his qualification as executor, and although the work may have been done, or the money advanced for the benefit of the estate, he represents, it as a charge against him individually. This being ascertained, the naming him as executor in the writ, and declaration, as it neither adds to, or diminishes his individual responsibility, is matter of form and not substance, as by reference to the claim asserted against him, it is evident he is not sued as executor, though described as such. This is Cole, use, &c. v. Justice. then merely descriptio personae, which, according to all the authorities, does not vitiate. The demurrer to the declaration was improperly sustained, and the judgment must be reversed, and the cause remanded. COLE, USE, &c. v. JUSTICE. 1. The payee of a note brought an action thereon for the use of a third person, who had become its proprietor, against one of the promisors, a surety; the consideration of the note was the sale of a tract of land by the payee to the principal maker; at the time of the sale there was an unsatisfied judgment against the vendor, operating a lien upon the land, this judgment the beneficial plaintiff authorized the principal to discharge, and promised to allow it as credit against the note; and it was accordingly discharged: Held, that the promise to the principal enured to the surety; that it was a direct and original undertaking to allow the payment, not obnoxious to the statute of frauds, and eo instanti it was made, extinguished the note pro tanto. 2. Although the vendee of land, with whom the vendor has covenanted that the estate is free from incumbrance, has a right to extinguish outstanding incumbrances to perfect his title, yet the amount thus paid will not be allowed as a set off in an action for the purchase money, nor will it avail the vendee at law, under the plea of failure of consideration. Writ of Error to the Circuit Court of Barbour. THIS was an action of assumpsit at the suit of the plaintiff in error against the defendant. The cause was tried upon issues to the pleas of non-assumpsit, set off, and the failure of consideration, a verdict returned for the defendant, and judgment rendered accordingly. On the trial, the plaintiff excepted to the ruling of the Court. From the bill of exceptions, it appears that the consideration of the note declared on, was the sale of a tract of land by the nominal plaintiff, to James B. Smith; and that the defendant was the surety of the latter. Cole, use, &c. v. Justice. Process not being served on Smith, the suit was discontinued as to him. The defendant released Smith from all liability to pay the costs of this action, and he was permitted to give evidence, notwithstanding the plaintiff objected. Although the plaintiff made the sale of the land to Smith, yet by agreement, one Douglass, in whom the legal title was vested, made the conveyance to the purchaser. At the time of the sale, there was an unsatisfied judgment against Douglass, which operated a lien upon the land; on which an execution being issued and levied, the defendant, to prevent a sale of the land paid off the It was shown that Bullock, the beneficial plaintiff, had authorized Smith to satisfy the judgment, and promised to allow such payment as a credit on the note in question; and that after this authority was given, $83 50 was paid. The plaintiff prayed the Court to charge the jury, that the authority to Smith, and payment, was no defence for the defendant, but could only be set up by the vendee. This charge was refused, and the Court instructed the jury that these facts might be set up by the defendant to the extent to which they would avail his principal. Further, that if the beneficial plaintiff agreed to allow the defendant a credit upon the note declared on, if he would satisfy the judgment against Douglass, then a payment by the defendant under such agreement is a good defence to the action as far as it goes. The Court also charged the jury, that if there was a legal incumbrance upon the land at the time of Smith's purchase, under which it could have been sold, then, either Smith or the defendant would be authorized to pay off such incumbrance, and set up the payment as a defence to this action. P. T. SAYRE, for the plaintiff in error, made the following points: 1. The charges which assume that a payment by either the defendant or his principal under the authority of the beneficial plaintiff, would constitute a good defence, cannot be supported: conceding that there was such an agreement, it was obnoxious to the statute of frauds, because it was an undertaking to answer for the default of a third person. 2. If there was a covenant, or other stipulation, binding the vendor of the land to Cole, use, &c. v. Justice. remove the incumbrance which the judgment against Douglass created, the breach of such covenant or stipulation would be regarded as unliquidated damages, and could not be set off under the statute. The discharge of that incumbrance by the purchaser or his surety, (if allowable,) would not vary the character of the defence. [Dunn, use, &c. v. White & McCurdy, 1 Ala. Rep. N. S. 645.] J. BUFORD, for the defendant, insisted, that the payment of the outstanding judgment against Douglass was authorized by the contract for the sale of the land, as well as Bullock's directions to Smith; and whether considered in reference to one or the other, the defendant may avail himself of the payment as a payment, or set off. The agreement of Bullock to allow it, if the inbumbrance was extinguished, requires no other consideration to entitle the defendant to set up the payment in his defence. COLLIER, C. J.-The promise by Bullock to Smith to allow as a payment on the note in question, the amount of the judgment against Douglass if he would discharge it, though it may have been made to him alone, enured to the defendant, his surety. If a principal obtain a claim against his creditor, which he may use as a set off, in a several action against a surety, the latter may with the assent of his principal, avail himself of the set off, as a defence to the action. This point was so ruled in Winston v. Metcalf, 6 Ala. Rep. 756. Here the right of the surety to set up as a defence, a matter to which the principal contributed, is even less questionable. The beneficial plaintiff agreed to allow the money advanced by Smith as a payment; and eo instanti upon the advance being made, the note was thus far extinguished, and was not enforceable, against either the principal or his surety. Such a promise by Bullock, is not obnoxious to the statute of frauds, as supposed in argument. It is not an undertaking to answer for the debt or default of another; but it is a direct and original promise to pay Smith if he would satisfy the judgment against Douglass. The engagement became absolute by the performance of the condition, viz: the payment of the money. In Dunn, use, &c. v. White & McCurdy, 1 Ala. Rep. N. S. |