Lowrie v. Stewart. note by Lowrie to Stewart, estopped him, under the circumstances, from asserting that it belonged to Favour & Brasher, so as to justify a set off against them; and that the giving of the receipt to Stewart, although for effects of Favour & Brasher, or which had belonged to them, had the same effect, and thereupon excluded the note from the jury." Thereupon the defendant excepted, &c. It appears from the judgment entry, that the sixth plea was stricken out by the Court. S. F. RICE, for the plaintiff in error, contended-1. That the sixth plea was good, and consequently should not have been stricken out. [1 Ala. Rep. 124; 6 id. 509.] 2. If the transfer of the claims due Favour & Brasher was merely colorable, or fraudulent, as is shown by the evidence recited in the bill of exceptions, then the defendant below should have been allowed to set off the note acquired from Holloway. 3. Neither the undertaking to pay the plaintiff the sum expressed in the note declared on, or giving him a receipt for the claims placed in the defendant's hands by Brasher, estopped the defendant from insisting that the transaction was fraudulent as between the plaintiff and Brasher; or prevent him from relying on the set off. 4. The three last counts in the declaration are imperfect, and to them at least the demurrers should have been sustained. E. W. PECK & CLARK, for the defendants in error, insisted, that the declaration was good. The sixth plea was not an answer to the declaration; for the common counts are not necessarily founded upon open accounts, and not alledged to be so. The striking out of the plea is only shown by the judgment entry, and not by the bill of exceptions-will it be considered by this Court? 2. The note of Holloway was not good as a set off. It does not appear that the defendant acquired it, until after he made the note to the plaintiff; but if he had it previously, he was estopped from setting it up, by consenting to become the plaintiff's debtor, instead of becoming liable to Brasher. In respect to the sum of $1,076 dollars, which Favour and Brasher owed Brasher, certainly the latter had the right to use that sum as he pleased. He transferred effects of the firm to that extent to Stewart, and that it might be realized, he placed some of the claims in the defendant's hands for collection. Thus far there is no right of set off. Again; Lowrie v. Stewart. the defendant could not retain money collected by him, as a justice of the peace, in satisfaction of his own private demand. COLLIER, C. J.-In Winston v. The Trustees of the University, 1 Ala. Rep. 124, it was determined that in an action of assumpsit on the common counts, a plea of the statute of limitations of three years, which does not aver that the plaintiff's cause of action is an open account, is bad on demurrer. If the plea was no answer to the declaration, the defendant has not been prejudiced by the striking it out, and cannot complain that the plaintiff did not demur. The three counts which were demurred to, are certainly not so verbose as those furnished by most of the writers upon pleading, yet it is believed that each of them states with clearness the facts which constitute a good cause of action; and that the liability deduced from them is a proper deduction. It was clearly competent for Brasher to transfer his individual property to Stewart, who had perhaps made advances for him, or if he had not, was bound to pay money for him. The arrangement between Brasher, the plaintiff and defendant, was, in effect, a transfer of a portion of the purchase money, to be paid for the house which the former sold to the latter. The validity of this transaction, we think, cannot be impngned by showing that Brasher also transferred the effects of Favour & Brasher to the plaintiff, and that he preferred him to other creditors, because he was his father-in-law. A debtor may prefer one creditor to another, if liens already attaching are not thereby defeated or impaired. A relationship by consanguinity, or affinity, cannot prevent the creditor from securing himself. It is not necessary to an estoppel that there should be a deed, but it may be by matter in pais. By making the note payable to the plaintiff instead of Brasher, the defendant admitted his liability to the payee, and that he was entitled to the money, and cannot now be permitted to alledge otherwise. Such a defence might be prejudicial to the plaintiff, who, in consequence of the defendant's promise, must have pretermitted other means to secure himself pro tanto. In Prewitt v. Marsh, 1 Stewart & P. Rep. 17, the defendant being sued for the recovery of money received by him as a justice of the peace, attempted to set off money due him from the Massey v. Walker. beneficial plaintiff in the action. This Court said, " that a justice of the peace who receives money in his official capacity, cannot lawfully detain it in satisfaction of a debt due him in his private capacity; and that it cannot be the subject of payment or set off," &c. Here is a case directly in point, and fully sustains the decision of the Circuit Judge. See also Crockford v. Winter, 1 Camp. Rep. 124. It results from the view taken, that the judgment of the Circuit Court is affirmed. MASSEY v. WALKER. 1. The refusal to quash an attachment, is a matter which cannot be re-examined on error. 2. A plea seeking to abate an ancillary attachment, on the ground that the defendant had been previously arrested and held to bail, is bad on de murrer. 3. A replication to a plea in abatement, asserting that the arrest of the defend ant and pendency of the suit spoken of in the plea, are part of the proceedings in the same suit, as pleaded to, should conclude to the Court, as it is triable by the record. 4. In practice, no formal judgment of respondeas ouster is entered upon the sustaining a demurrer to a plea in abatement. The sustaining of the demurrer is entered on the record, and if the defendant wishes to plead over, he is permitted to do it. 5. An ancillary attachment may be sued out, although the party has been previously arrested on bail process issued in the same cause. Writ of Error to the Circuit Court of St. Clair. WALKER on the 30th June 1842, sued out a writ in assumpsit against Massey, returnable to the then next September term. Bail having been required, the defendant was arrested, and entered into the usual bail bond, with surety. Afterwards, on the 17th Massey v. Walker. July of the same year, the plaintiff sued out an ancillary attachment, which is returned levied. At the return term, the defendant moved to quash the attachment, which motion was refused. He then pleaded in abatement of the attachment-1. Because the bail writ before sued out had been executed on the defendant. In this plea the attachment is said to be the leading process in the suit. 2. A similar plea, showing the arrest of the defendant under the bail writ, and leaving out the assertion that the attachment is the leading process in the suit. Both pleas pray judgment of the attachment that it may be quashed. The plaintiff replied to the first plea, that there was no record of any such attachment, forming the leading process in the suit, and avers that the attachment sued out is ancillary to the suit commenced by the bailable process, and that both writs formed one suit. To the second plea he demurred. The defendant took issue " in short," to the plaintiff's replication to the first plea. The judgment only recites that the demurrer to the second plea was sustained; the issue formed on the first plea in the count was found for the plaintiff, and the defendant saying nothing further in bar, or preclusion of the plaintiff's demand, it was considered, &c., rendering a final judgment. The defendant now assigns, that the Circuit Court erred1. In overruling the motion to quash the attachment. 2. In sustaining the demurrer to the second plea. 3. In deciding the issue formed on the first plea in favor of the plaintiff. 4. In not awarding a judgment of respondeas ouster after sustaining the demurrer. 5. In rendering judgment final upon the state of facts shown by the record. 6. In rendering final judgment, without having first awarded a judgment of respondeas ouster. 7. In trying the issue joined, and in not submitting it to a jury. RICE, for the plaintiffin error, made the following points: 1. The estate of a debtor cannot be attached, on mesne process after his body has been arrested in the same suit. [Daniels v. Wilcox, 2 Root, 346; Brinly v. Allen, 3 Mass. 561. Massey v. Walker. 2. The issue growing out of the second plea should have been submitted to a jury. 3. A judgment of respondeas ouster is the only proper one which can be given on the plaintiff's demurrer to a plea in abatement. [1 Lord Raymond, 338, 550; 16 John. 307; Com. Dig. 142; Burntham v. Webster, 5 Mass. 266.] F. W. BOWDON, contra, argued 1. The refusal to quash is not reviseable on error, (Reynolds v. Bell, 3 Ala. Rep. 57,) but the attachment is regular. [Hounshell v. Phares, 1 Ala. Rep. N. S. 580.] 2. The issue was properly nul tiel record, and therefore to be tried by the Court. [Gaston v. Parsons, 8 Porter, 469.] And the record shows that the defendant declined to plead over. [McCutchen v. McCutchen, 8 Porter, 151; Chilton and Bowdon v. Harbin, 6 Ala. Rep. 171.] 4. The bail writ does not preclude the suing out of the ancillary attachment. A parallel case exists under the statute, which gives a ca. sa. and fi. fa. at the same time. [Cary v. Gregg, 3 Stewart, 433.] GOLDTHWAITE, J.-All the questions made in this case, may be briefly disposed of. 1. As to the refusal to quash the attachment, that is not a matter which is proper to be examined on error. At best, this is a motion which the Court may entertain, but cannot be controlled to do so. [Reynolds v. Bell, 3 Ala. Rep. 57.] 2. Our statutes which authorize attachments as ancillary to causes already depending, make no distinction between suits commenced by bailable process, and suits commenced in the ordinary mode. In either class, we consider the attachment proper, if the statutory course for suing it out is shown. This conclusion is decisive of any supposed merit in the second plea in abatement, to which the demurrer was properly sustained. 3. In relation to the issue growing out of the other plea, it is entirely immaterial what it was, or whether formed, to the Court or jury, as in either case it would have availed the defendant nothing. But in point of form the proper issue was nul tiel record, and although we do not know what was shown to the Court, as |