ties belonging to the original creditors, and the balance of the debt is of like rank with debts of a similar character due by testator at his death.

Appeal from chancery court, Chickasaw county; Baxter McFarland, Chancellor.

From an allowance of the claim of the Dundee Land & Mortgage Investment Company against the estate of T. D. Payne, deceased, W. W. Payne, executor, appeals. Affirmed.

W. J. Lacey and Buchanan & Stovall, for appellant. Houston & Reynolds and Orr & Stockett, for appellee.

WOODS, J. By the terms of the will of T. D. Payne, deceased, a trust was impressed upon his entire estate for the payment of all his debts. The debt of $12,000 incurred by the executor of the will of said T. D. Payne, deceased, with the Dundee Land & Mortgage Investment Company, in conformity with the provisions of the will, was not superior in rank and dignity to the debts of like character due by the testator at the time of his death, or to the other debts created by the executor under the terms of the will, precisely as the debt of the appellee was created. This statement, however, is to be qualified to this extent, viz.: If, in the transaction between the executor of T. D. Payne, deceased, and the Dundee Land & Mortgage Investment Company, any debts due from the testator in his lifetime, and secured by mortgage or deed of trust, were assigned and transferred to the Dundee Company, then and in that event the said company is entitled to the priorities which belonged to the original creditors. All properties belonging

to the testator at the date of his death are by his will charged with an express trust for the payment of the entire indebtedness of his estate, that which was existing at the date of his decease as well as that which was created by his executor under the provisions of his will, and all these debts were of equal worth, except in so far as the testator him self, or his executor, in the execution of the will, had secured the same by priorities of specific liens.

The exhaustion of the security given by the testator to the Dundee Mortgage Company, and its failure to satisfy the debt which it was intended to secure, leaves the balance due to the mortgage company as a valid, subsisting claim against the testator's estate, and with the right, if this is the only outstanding debt due from the testator's estate, to subject to its payment, in this proceeding, any property of the estate perverted from the uses and trusts to which it was dedicated by the will of the testator. The appellee is mistaken as to the extent and character of its rights, but it is not to be denied the relief to which it is entitled because it has asked too much. Having a just demand for the unsatisfied balance due on its debt of $12,000, the appellee may rightfully insist upon the subjection of those portions

of the testator's estate improperly alienated by the executor in violation of the trust created by the will, and in excess of the pow ers conferred upon him by that instrument. Affirmed.

CANADIAN & A. MORTGAGE & TRUST CO. v. FITZPATRICK et al.

(Supreme Court of Mississippi. Dec. 18, 1893.) PRACTICE-DISMISSAL OF INJUNCTION SUit-DeFENDANT'S RIGHT TO DAMAGES.

After defendant in a suit for an injunetion has filed a motion to dissolve the preliminary writ, plaintiff cannot, ex mero motu, dismiss the action, without first permitting defendant to establish the damage sustained by him as the result of the bringing of the action.

Appeal from chancery court, Coahoma county; W. R. Trigg, Chancellor.

Suit by A. F. Fitzpatrick and others against the Canadian & American Mortgage & Trust Company for an injunction. Pending a hearing on defendant's motion to dissolve the preliminary injunction, plaintiffs dismissed the action. Defendant moved to reinstate. Motion overruled. Defendant appeals. Reversed.

Thomas & Griffin, for appellant. D. A. Scott, for appellees.

WOODS, J. We are of opinion that the motion to reinstate the case, made to the May term, 1893, of Coahoma chancery court, should have been sustained, and the appellant permitted to pursue its rights which had accrued in the progress of the cause, and by the dismissal of their bill by the appellees. The equity of the bill is found in its averment that the two notes due January 1, 1892, and January 1, 1893, respective ly, had been paid. This, as we are informed by the record before us, had been met and answered, by denial, as we are authorized to assume,-and this answer was accompanied or followed by a motion by appellant to dissolve the injunction granted appellees on their bill, and affidavits were likewise filed in support of the motion to dissolve. The written suggestion of damages sustained by appellant was also filed. The hearing of the motion to dissolve, and, of course, the suggestion of damages, was postponed by appellees for more than a month, and finally, when the chancellor was ready to proceed to hear the motion and suggestion, he was notified that the appellees had dismissed their bill the day before that appointed for the hearing. The dismissal of the bill operated to dissolve the injunction, and certainly entitled the appellant to some damages. Presumptively, it was an admission of the want of equity in their bill, and the answer of appellant was true, and in this case the damages suggested would seem re coverable. But if, on hearing, this presumption should have been shown to be unfounded, and that the two notes referred to had

been in fact paid, as alleged in the bill, still, on dissolution of the injunction, even by the voluntary act of appellees, appellant was entitled to some damages, as for advertising, attorney's fees, etc.; and this right, which had arisen to appellant in the course of the proceedings, it should have been permitted to have established in that suit, and not have been subjected to the delay and expense incident to a resort to suit on the injunction bond in a law court. The general rule is, undisputedly, that a litigant may dismiss his complaint; the exception is that he may not, after decree or decretal order, nor after his adversary is entitled to a decree by proceedings in the particular suit. "The plaintiff is allowed to dismiss his bill on the assumption that it leaves the defendant in the same position in which he would have stood if the suit had not been instituted; but that is not so when there has been a proceeding in the cause which has given the defendant a right against the plaintiff." Cooper v. Lewis, 22 Eng. Ch. 177; Insurance Co. v. Roberts, 4 Sandf. Ch. 592; Bank v. Rose, 1 Rich. Eq. 294; 1 Daniell, Ch. Pr. 790. Reversed and remanded.

1. Plaintiff agreed to accept a certain sum in satisfaction of his claim against defendant, and gave a receipt for such sum, as actually paid, on defendant's promise to remit, but no money was actually paid or remitted. Held, that there was no accord and satisfaction, and plaintiff could recover on the original claim.

2. The rendition of a judgment against a garnishee in an action by an attachment creditor cannot be pleaded by the garnishee in bar of an action by the attachment debtor, as payment of the judgment is the only bar.

3. An attachment debtor may proceed to judgment in his action against the garnishee, but execution thereof should be stayed to an amount equal to that for which the attachment creditor either seeks to charge the garnishee, or has recovered judgment.

Appeal from circuit court, Tunica county; R. W. Williamson, Judge.

Actions by J.. W. Fulton against the Yazoo & Mississippi Valley Railroad Company for damages for killing stock. From a judgment for plaintiff, defendant appeals. Reversed. Mayes & Harris, for appellant. F. A. Montgomery, Jr., for appellee.

COOPER, J. The facts involved in this case, chronologically stated, are as follows: On the 26th day of January, 1893, one of the trains of appellant ran over and injured a mule belonging to appellee. On the 17th day of March following, B. J. Semmes & Co. sued out an attachment in the proper court in the state of Tennessee against appellee on a debt of $182.40, and summoned the appellant as

garnishee therein. On the day following, the appellant answered, stating that it had been informed that appellee claimed damages against it for the injury to his mule, which claim was contested, but stated that it would hold, subject to the attachment, whatever sum should be found due to appellee on said claim. On the 21st day of April appellee instituted suit against appellant before a justice of the peace to recover damages for the injury to the mule. On the 22d day of April a train of appellant killed an ox of appellee, and on the 25th day of April he sued appellant before the same justice to recover its value. On the 11th day of May, judgments by default were rendered against appellant in these cases, and on the same day it prosecuted appeals therefrom to the circuit court. On September 7th an agree ment of compromise was entered into be tween appellee and the appellant, by which appellee agreed to accept $80 as payment in full of the judgments recited, and to dismiss the suits at his cost. The agent of the company, representing to appellee that he would remit to him the money, procured him to sign a receipt therefor, but no money was in fact paid or remitted to appellee. On September 9th the appellant filed another answer as garnishee in the attachment suit of Semmes & Co. against appellee, in which it stated that "by an agreed settlement of a certain claim due J. W. Fulton by said company for stock killed, say that said company have agreed to pay him eighty dollars for said claim." On this day (September 9th) the appellee was in the city of Memphis, and called on the proper officer of the company, and requested payment of the $80 agreed to be paid him by the company; but this officer, saying that he then had no voucher to pay by, requested appellee to return in an hour, and he "would then see about it." Appellee returned, and found that appellant's agent had procured the attendance of an officer, who served upon appellee a summons in the attachment suit of Semmes & Co. Appellee then notified the agent of appellant that he repudiated the agreement of compromise, and would not be bound thereby. On the same day judgment was rendered in the attachment suit of Semmes & Co. against appellee for the sum of $195.02 and costs of suit, and against appellant, as garnishee, for the sum of $80, admitted by its answer to be due. In the circuit court the two suits appealed from the justice of the peace were by consent of parties consolidated, and a trial of the same resulted in a verdict and judgment in favor of the plaintiff for $175, from which the defendant appeals.

No point was made in the court below, nor is any now made here, as to the right of the plaintiff to the damages awarded by the jury, unless he is precluded by the adjustment made in which he agreed to accept $80 in full of his demand; or unless, not being bound by that agreement, his right to a present re

covery is limited to the balance due on his claim after making a deduction of the sum for which judgment has been rendered against appellant as garnishee. It is entirely clear from the evidence that there has been no accord and satisfaction of the plaintiff's claim. That a present payment of the sum he agreed to accept was contemplated by the parties is made indisputable by the fact that the plaintiff gave a receipt for the sum as actually paid. It is true that a promise may be accepted as satisfaction of an accord; but when, as here, it is manifest that performance was contemplated by the parties, the mere promise to perform is not satisfaction. Whitney v. Cook, 53 Miss. 551; 1 Amer. & Eng. Enc. Law, 94. The defendant has not paid the sum agreed to be received by the appellee, and his right to recover on the original demand was not at all affected.

The remaining question involved is as to the effect of the judgment against the garnishee in the attachment suit of Semmes & Co. against Fulton, the appellee. The action of the appellee was instituted in the justice's court, in which there are no written pleadings, and on appeal to the circuit court was there triable de novo on oral pleadings; and in such cases the pleadings are presumed to have been of such character as to warrant the introduction of any evidence appearing in the record. The defendant introduced in evidence the record of the attachment suit, and is entitled to have it considered in any light in which it should have been available to it. There is a wide diversity of views entertained by the courts of the various states as to the effect of a judgment against a garnishee who is afterwards sued by the original creditor, the defendant in attachment or judgment. In England it is held that a judgment against the garnishee is a bar to an action upon the same debt. McDaniel v. Hughes, 3 East, 367. The courts of Florida, Indiana, Kentucky, Maine, and Massachusetts have announced the same rule. Sessions v. Stevens, 1 Fla. 233; Covert v. Nelson, 8 Blackf. 265; King v. Vance. 46 Ind. 246; Coburg v. Currens, 1 Bush, 242; McAllister v. Brooks, 22 Me. 80; Norris v. Hall, 18 Me. 332; Perkins v. Parker, 1 Mass. 117; Hull v. Blake, 13 Mass. 153. In other states, and in the supreme court of the United States, it is held that the judgment or pendency of garnishment proceedings may be pleaded in abatement of the plaintiff's suit. Embree v. Hanna, 5 Johns. 101; Hazelton v. Monroe, 18 N. H. 598; Ladd v. Jacobs, 64 Me. 347; Irvine v. Bank, 2 Watts & S. 190; Near v. Mitchell, 23 Mich. 382; Clise v. Freeborn, 27 Iowa, 280; Brown v. Somerville, 8 Md. 444; Mattingly v. Boyd, 20 How. 128. In others it has been held that, though the proceeding or judgment may not be pleaded in abatement or bar of the suit of the creditor, yet the court, in entering up judgment, would so frame the same as to protect the

defendant, garnishee in the other action, from being called on to pay the same debt twice. Meriam v. Rundlett, 13 Pick. 511; Crawford v. Slade, 9 Ala. 887; Smith v. Blatchford, 2 Ind. 184; McFadden v. O'Donnell, 18 Cal. 160; Pierson v. McCahill, 21 Cal. 122; Shealy v. Toole, 56 Ga. 210; Hicks v. Gleason, 20 Vt. 139. The course of decision' in some of the states has not, probably, been at all times consistent, and we have not attempted to discover how the respective courts now hold, for that is immaterial. The different views entertained, and the general classification of the decisions, have been deduced from a review of the text of Drake on Attachments, (chapter 38,) and the cases therein cited. The question has never been decided in this state, though in Kellogg v. Freeman, 50 Miss. 127, there is a dictum to the effect that by a judgment against the garnishee the debt he theretofore owed to the defendant "is transferred by operation of law," and inures to the benefit of the plaintiff in attachment. We cannot assent to the correctness of this proposition. The plaintiff in attachment, seeking merely to enforce a pecuniary demand against his debtor, does not, by the judgment against the debtor, acquire the legal title to his estate, real or personal. The judgment is but a step in the enforcement of the demand of the plaintiff, and subjects the estate of the debtor to the process of the court to pay the debt awarded. So, also, the garnishment of one owing the defendant a sum of money, or having his effects in possession, and the judgment against the garnishee directing him to pay over the money or deliver the property to the proper officer, are but other steps in the same direction. No property in the debt due or the thing surrendered by the garnishee passes to the plaintiff by the judgment, for, if such was the case, it would discharge pro tanto the judgment, which would thus be self-executing and self-ending. In truth, all that the plaintiff secures is the right to have the garnishee pay him the debt which before that was due to the defendant. Payment by the garnishee is the only thing which can release him, and bar the right of his creditors. The mere fact, therefore, that a judgment has been rendered against the garnishee is not available to him in bar of a suit afterwards or before instituted against him by his creditor. But, since the attaching creditor, by his judgment, has secured the right to issue execution against the garnishee, it would be inequitable to permit the defendant in attachment to secure another judgment, with the right of instant execution to collect the same debt. The debt is yet his, and he is interested in its collection; but it has been impounded under legal process, and a charge imposed, which is superior in right to his. To meet the exigency, and preserve as far as practicable all the rights of all the parties, a number of the courts, as will be seen by

reference to the citations above made, have held that the right of action or the right of execution should be suspended until the lien of the attaching creditor is discharged. In those jurisdictions in which it is held that the right of action is suspended, the defendant may plead in abatement of the suit the pendency of the garnishment proceedings, or the fact that judgment has been rendered against him therein. In those in which the right to sue is upheld, protection is afforded the defendant by suspending execution of the judgment until the defendant is relieved of liability under the judgment against him as garnishee. In most instances the practical effect would be the same under either rule. In view of the facts that it may sometimes be of importance to the creditor to have a judicial determination of his rights at as early a time as possible, and that the debtor cannot be injured by the mere rendition of the second judgment, we think the better rule is that the creditor may proceed to judgment, but that execution thereof should be stayed to an amount equal to that for which the defendant is sought to be charged as garnishee in a pending suit, or for which judgment has been rendered against him. The judgment of the court in this cause should have been for the plaintiff, but with a stay of execution as to $80, with interest from September 19, 1893. the date of the judgment against the garnishee, until the defendant should be discharged from liability thereunder. In failing to incorporate this saving in the judgment the court below committed error, for which its judgment must be reversed, but a proper judgment may be entered here. So ordered.

VANN et al. v. MARBURY. (Supreme Court of Alabama. Dec. 4, 1893.) MORTGAGE-PAYMENT TO MORTGAGEE-CANCELLATION-ACTION TO SET ASIDE BY TRANSFEREE OF NOTE-EVIDENCE-NOTICE OF TRANSFER-BONA FIDE PURCHASER-WHAT CONSTITUTES.

1. A mortgagee delivered to plaintiff, without indorsement, a mortgage note, as collateral security for a debt. The mortgagor paid the mortgage to, and procured its cancellation by, the mortgagee, without notice of the transfer of such note. and sold the mortgaged premises to her codefendant, which purchased in good faith, the mortgagee representing that he was the owner of such note, and that it was temporarily mislaid. Held, that plaintiff could not subject such premises to the payment of such note.

2. It is immaterial, in such case, whether such note was negotiable or not.

3. Though there was evidence that the transfer of the note to plaintiff was in consideration of indulgence by him to such mortgagee on such antecedent debt, he is not a bona fide holder where such evidence does not show such a definite agreement as to the forbearance as to constitute an independent consideration for the transfer.

4. Evidence that plaintiff's attorney mailed to the mortgagor a notice of such transfer, addressed to the proper post office, and that the letter was never returned to him, although v.14so.no.6-18

his name and address were on the envelope, only shows a prima facie case of notice, which is overcome by the positive denial of notice by such mortgagor.

5. The evidence showed that the mortgagor received the consideration for the conveyance, delivered the deed to the grantee, and paid the mortgagee the amount due on the mortgage on the faith of the mortgagee's statement that the notes and mortgage were at his office; that the mortgagor and her grantee's agent went with him to his office, where she received the mortgage and one note, and a receipt against the note in question, which the mortgagee said was misplaced; and that such receipt recited that the note was in the hands of plaintiff's attorney, but such agent did not read the receipt, or learn that the note was in the hands of any person other than the mortgagee. Held, that neither of defendants had knowledge of facts sufficient to put them on inquiry as to the transfer of such note to plaintiff.

Appeal from chancery court, Jefferson county; Thomas Cobbs, Judge.

Action by Josiah H. Marbury against William J. Vann, Harriet Moore, and W. B. Moore, her husband, and the Woodlawn Cemetery Company, to set aside the cancellation of a certain mortgage executed by Harriet Moore to Vann on land afterwards conveyed by her to defendant company, and to foreclose such mortgage to the extent of one of the notes secured thereby, which was delivered before maturity by defendant Vann to plaintiff as collateral security for an antecedent debt. From a judgment and decree for plaintiff, defendants appeal. Reversed and rendered.

Lane & White and W. R. Houghton, for appellants. Ward & John, for appellee.

STONE, C. J. Many of the assignments of error are based on the objections of appellants to portions of the testimony offered by appellee. Without ruling specifically on the objections, the chancery court rendered a decree on the merits in favor of appellee. We shall consider only the substantial controversy as shown by the record, and in doing so will look alone to the legal testimony to determine whether or not it authorizes the decree from which the appeal is taken. The controversy as it comes before us in this record is mainly one of fact, and arises out of the following circumstances: In December, 1886, Vann sold and conveyed a tract of land near Birmingham, Ala., to Harriet Moore, in consideration of the sum of $4,000, of which $1,333.33 was paid cash, and for the balance Mrs. Moore and her husband executed and delivered their two joint notes for $1,333.33 each, both dated December 27, 1886, payable, respectively, at 12 and 24 months from date, and secured by a mortgage on the land. The mortgage recites an indebtedness of $2,666, one-half due December 27, 1887, and the other due December 27, 1888, and was duly recorded. On the 1st day of June, 1887, Vann transferred the first of said notes to Marbury as collateral security for an antecedent debt owing by

the former to the latter. It is claimed by appellee that notice of this transfer was given by his (Marbury's) attorney to Mrs. Moore at the time of the transfer, or shortly thereafter, by a letter addressed to her at Birmingham or Avondale, (the witness being uncertain which,) but stating that the envelope had his name printed thereon, and that the letter was never returned to him. Afterwards, to wit, October 24, 1887, Mrs. Moore, believing she would not be able to meet the notes, and before either of them had matured, sold the property to the Woodlawn Cemetery Company for $4,158. Of this sum $358 was paid to her in cash and $3,800 in stock of said company. One thousand dollars of the stock she retained, and the remaining $2,800 of stock was, contemporaneously with its payment to her, transferred by her to Vann. Vann, Mrs. Moore, Erswell, and Nash were present at the conclusion of the trade; the two latter being respectively president and secretary of said Woodlawn Cemetery Company. When the money and stock were paid, Vann agreed to go at once to the courthouse, and cancel the mortgage on the records. He also stated that the mortgage and notes were at his office, and requested Mrs. Moore to go with him from Erswell's office to his office, where he would deliver the papers to her. Mrs. Moore and Nash both went with Vann to his office, where he got the mortgage and one of the notes, (the last note,) and gave them up to Mrs. Moore, saying that the other note (the one in controversy) was mislaid, and that he would get it for her in a day or two. He gave Mrs. Moore a receipt against the lastmentioned note, in which receipt it is recited that the note was then in the hands of W. C. Ward; but it does not appear that this receipt was shown to Nash, or that he knew of this recital therein. Vann afterwards made various excuses for not delivering up the note. Mrs. Moore denies ever having received notice of the transfer of the note, and the Woodlawn Cemetery Company also denies notice that appellee held the note, or claimed any interest in it, and also of all facts that might put it on inquiry. Vann did not in fact cancel the mortgage on the records for some months after the payment. He, on one occasion, told Mrs. Moore that he had done so, but she, finding the statement to be false, required him to go to the records with her, and make the proper entry of satisfaction. He is not examined by either party as a witness.

The question argued by counsel as to whether or not the note transferred by Vann to Marbury is negotiable is not a material one, for several reasons. In the first place, it was transferred to Marbury as collateral security for an antecedent debt Vann owed him. The doctrine in this state is that the holder of negotiable paper as collateral security for a pre-existing debt is not a bona fide holder for value, nor entitled to protec

tion against equities and defenses existing between prior parties, of which he had no notice; but that such paper is open in the hands of such holder to all the defenses which could have been made against it while in the hands of the original owner. Bank v. Johnston, (Ala.) 11 South. 690. In the next place, it nowhere appears from the record that the note was indorsed by Vann to Marbury, so as to carry the legal title. Even negotiable paper assigned before maturity, unless payable to bearer or indorsed, will be subject in the hands of the assignee, until the debtor is notified of the assignment, to the same equities as would have affected the party from whom it was received. The rule, in such cases, applicable to both nonnegotiable and negotiable paper, has been well stated as follows: "When the written evidence of indebtedness is nonnegotiable or overdue, indorsement will not obviate the necessity of notice; but, when negotiable paper requiring indorsement is assigned by delivery, notice has been held necessary to perfect the assignment." Wade, Notice, § 442. It is true the testimony tends to show that the transfer of the note as collateral was in consideration of indulgence granted by Marbury to Vann on the debt for the security of which the note was so transferred; but the testimony does not show such a clear, definite, and certain agreement, either as to the terms or time of the forbearance, as to constitute an independent consideration for the transfer which would give the transferee the rights of a bona fide holder for value without notice. Whether or not, therefore, the note in controversy was or was not negotiable paper, the whole question is one of notice.

Did Mrs. Moore, before or at the time of making payment of the note to Vann, have notice of the transfer of the note to Marbury? And did the Woodlawn Cemetery Company, at the time or before making payment of the purchase money to Mrs. Moore and to Vann, have notice of such transfer, or of any fact sufficient to put it on inquiry? In the absence of notice to Mrs. Moore of the transfer of the note to Marbury, the payment made by her to Vann would be a complete protection to her against this suit, notwithstanding the note was not produced and delivered up at the time of such payment. In Hart v. Freeman, 42 Ala: 568, we said: "The maker of a promissory note, not negotiable, may pay the same to the payee after its maturity, even though the note be not produced and delivered up at the time of payment, provided the maker has had no notice of the indorsement or transfer of the note to a third person; and such payment would be a valid and competent defense against the note, should it afterwards appear, and suit be brought thereon against the maker by another holder." It was further held in that case that the burden of proof rests upon the plaintiff in the action, the defendant having