Harrison v. Harrison, et al. In of the other distributee were brought before the court. Graham v. Abercrombie, 8 Ala. Rep. 552, this matter was somewhat considered, and we then held that decrees made by the Orphans' Court, although at the instance of one of the parties in interest, would be conclusive if the necessary citations were given by the court. In all suits of this nature, whether for distribution or final settlements, the proceedings may be instituted by one or more persons, and the administrator, as to him, is the defendant. If the distribution or settlement involves the rights of others, they are not concluded by the decree, unless brought before the court; but this duty devolves on the administrator, as he is the party for whose protection it is necessary. This is so fully examined in the case last cited, that a review of the authorities is here unnecessary; they are found in 4 Burns' Ecl. L. 369. So far as the slaves supposed or intended to be emancipated, and the trustee to whom other slaves for their use are bequeathed, are now supposed to be necessary parties, no citation or other proceedings was asked by the administrator in the court below, and therefore the objection here would be too late if the will actually was invalid, and would be unimportant if otherwise, because the decree upon its merits, in that event, would be reversed. But in relation to the other distributee, who was not before the court, the application was specific, that the cause should not proceed until her representatives had been cited. This distributee is interested in the allotment or division of the slaves, and the decree would not be binding on her, or her representatives, unless cited to appear and made a party. This the administrator, for his own protection, has the right to require, and having required and been refused, the decree for this cause must be reversed. No particular stress was laid on this matter in the argument at bar, nor was its controlling effect discovered, until the opinion was about to be written, which will account for the decision being different from that at first intended. 9. The decree, in point of form, contains no substantial error, so far as we have had our attention called to it. It is perhaps irregular, in directing what shall be done upon the return by the commissioners of the distribution of the slaves among the petitioners. In point of practice, the return and Bowen v. Snell, use, &c. report of the commissioners is subject to exception and revision, and it is only upon its confirmation by the court that the final order to deliver the property, is proper, and it is at that time, or subsequently, the refunding bond is examined and approved by the court. 9. We omitted to mention in its proper place, our conclusion as to the will itself. That is so fully covered by the decision of Trotter v. Blocker, 6 Porter, 380, and Coleman v. Alston, 7 Ala. Rep. 795, as to require no other consideration than to state its invalidity, as opposed to our local law. The bequest of emancipation, and that for the use of the slaves intended to be freed, are entirely void. Judgment reversed and remanded, in order that the representatives of Mrs. Moores may be cited, and made parties if they appear. And also, that the trustee for the slaves may be made a party, if the administrator desires it. BOWEN v. SNELL, USE, &c. 1. A plea averring who is the real owner of the note sued upon, and that the suit is instituted for his benefit, and pleading an offset against him, is a good plea, although a different person is indicated on the record, as the beneficiary of the note in suit. Error to the County Court of Butler. ASSUMPSIT by the plaintiff in error on a promissory note, for the use of Watkins Salter. Pleas, non assumpsit, and a special plea, averring that John G. Salter is the real owner of the note sued upon, and that the suit was instituted for his benefit; that John G. Salter was, and still is, indebted to one Coley & Stewart, in a large sum of money, to wit: the sum of $483, by promissory note, dated the 8th February, 1841, and due the 1st February af Bowen v. Snell, use, &c. ter, which promissory note Coley & Stewart indorsed and delivered to the defendant-that the note was presented to J. G. Salter, and he refused to pay-that the debt is still due and unpaid, and exceeds the amount of the debt sued upon, and offers to set off the damages against the claim sued upon. The plea concludes with a verification. To this plea the plaintiff demurred, and his demurrer was sustained. The defendant also attempted to prove the same facts under the general issue, but the court ruled out the evidence, and the defendant excepted. These matters are now assigned as error. Cook, for plaintiff in error, cited 2 S. & P. 134; 8 Porter, 523; 7 D. & E, 663. WATTS, contra, contended, that the plea was double, and incongruous. That a set off could not be allowed in a court of law, which was not against the beneficial plaintiff upon the record. [6 Cowen, 695; 5 Id. 231; 10 Johns. 409; 7 Ala. Rep. 495.] If the testimony was admissible, it could have been received under the general issue. [7 Ala. Rep. 162.] It was properly rejected, because it was offered, not only to contradict the alledged ownership of the note, but also as a set off. ORMOND, J.-Though we are not aware that the precise point here presented, has ever before arisen in this court, yet many of our decisions on kindred subjects, assume the law to be, that a set off may be pleaded against the party really interested in the debt sued upon, though not a party to the record. Such is the doctrine of the English courts. See the opinion of Mr. Justice Ashurst, in Winch v. Keely, 1 Term, 621; 7 Taunton, 237. In New York, at one period, a different opinion prevailed. In the case of Wheeler v. Raymond, 5 Cowen, 231, the question was elaborately considered, and it was held, that a set off could not be pleaded against the party beneficially interested, he not being a party to the record. To the same effect is Johnson v. Bridge, 6 Id. 695. These decisions are put upon the statute of set off of that State, which allows the de Bowen v. Snell, use, &c. fendant to have a judgment for the excess of the demand set off, beyond the debt of the plaintiff, which it is supposed by the court, is conclusive to show, that the legislature intended to confine the right of pleading a set off to the parties to the record. This reasoning is not in our opinion satisfactory. The right to a judgment for the excess, is a privilege conferred on the defendant, which he certainly ought to have the right to waive, and to be permitted to set off a part, where from the condition of the record, he cannot get a judgment for the residue. The more especially, as this state of things is produced by the fraudulent conduct of the creditor, in putting a simulated plaintiff upon the record. Our statute is, in this respect, the same as the New York statute. and in Jones v. Milton, 7 Ala. Rep. 830, this point was ruled differently by this court, holding that in cases where a judgment could not be obtained for the excess of the set off over the debt sued upon, so much of the counter claim as could be set off would be extinguished. In Bridge v. Johnson, 5 Wendell, 343, this question came before the court of errors of New York, and the court were equally divided upon it, so that it seems, that in that State the law is still in an unsettled condition. The law, as we understand it to be, and as it has been heretofore understood in this State, commends itself by its conformity with the letter of the statute, by its directness, and simplicity, and its tendency to prevent fraud. It would be monstrous, if an insolvent man could prevent an off set against his claim, by indicating upon the record, that the suit was brought for the benefit of a third person. [Sargent v. Southgate, 5 Pick. 312; Ranger v. Carey, 1 Metcalfe, 369; McDuffie v. Dame, 11 N. H. 244.] The criticism upon the pear to be well founded. language of the plea, does not apThere is nothing incongruous in the averments of the plea, though there is a slight inaccuracy of language. Let the judgment be reversed and the cause remanded. 9 481 117 566 Dumas & Co. v. Patterson, et al. DUMAS & Co. v. PATTERSON, ET AL. 1. In a summary proceeding by motion against a sheriff and his sureties, for failing to pay over money collected by the former, the sheriff, if willing to testify, is a competent witness for the plaintiff, to prove that he converted the money, before the persons joined with him in the motion ceased to be his sureties, and thus fix a liability upon the latter instead of their successors, in his official bond. The sheriff, in the event of a recovery, would be liable to either set of sureties, who were made to answer for his default; consequently his interest is balanced. 2. The declarations of a sheriff, made while he is acting officially, in respect to the receipt of money, are admissible against his sureties as part of the res gesta; but if made at a subsequent time, and when be is not acting officlally in the watter, they must be regarded as independent declarations, and cannot be received as evidence. 3. Where a sheriff has renewed his bond, so as to have several sets of sureties, those sureties will be liable for his default in not paying over money collected on executions, who were such at the time he converted it; for it is from this latter period, and not its collection, that their liability to suit 4. Semble. The conversion by the sheriff, of money collected by him, may be shown by proof of demand and refusal, or of the appropriation of it to his own use; but the mere payment of money collected on one execution to the plaintiff in another, or an appropriation of it by the sheriff to other purposes, will not be regarded as a conversion, so as to subject him or his sureties to a judgment on motion, for the failure to pay it over, if he retains other money ready to be paid over to the plaintiff on demand. Writ of Error to the County Court of Clarke. THIS was a motion against Patterson, as the sheriff of Clarke, and the co-defendants as his sureties, for the failure to pay over, on demand, the amount collected by the former on a writ of fieri facias, particularly described in the notice. The cause was submitted to a jury, on a plea which put in issue the liability of the defendants on their bond, for a breach of official duty by the sheriff; a verdict was returned for the defendants, and judgment was rendered accordingly. On the trial, the plaintiff excepted to the ruling of the court. It ap |