Vertrees vs. Shean, &c.

defendant in an execution was allowed to replevy property taken under execution for the space of three months, by executing bond, with surety, payable to the plaintiff, in the manner and to the effect prescribed by the 16th section of the act of 1828, (1st vol. Stat. law, 642,) upon which bond, after the same fell due, the proper officer, as the section provides, was authorized," at the request of the plaintiff or his attorney, to issue execution thereon in all respects as on a judgment," and such bond is declared to have the force of a judgment, and be taken and treated as such.

It is only by authority of law that bonds of any description have the force and effect of judgments; and without such authority no officer of the law has the right to treat any bond as a judgment, either for the issual of an execution or for any other purpose. The law communicates the force of a judgment to a bond taken in pursuance of its requisitions; and in determining its efficacy we must look to the bond itself.

"If it contains the characteristic stipulations of a replevin bond, and be payable at the time prescribed by law for such bond-though in taking it the officer may have erred in calculating the amount due, or may have acted erroneously in other respects--still it is a replevin bond, and until quashed or set aside, must have the force of a judgment." (7 Mon., 261.) But if it is not payable at the time prescribed, or is wanting in any other material stipulation demanded by the law, it is not entitled to the force and effect of a judgment, and any process or execution issued thereon must be regarded as unauthorized and invalid. Neither the consent of the parties, nor the acts of officers, can impart to such bond the validity and effect of a judgment for any purpose.

The cases referred to by the counsel do not apply here. The bonds in those cases were taken in pursuance of a statute then in existence--though afterwards held to be unconstitutionaland it was upon that ground mainly that they were deemed sufficient to uphold the executions and sales.

Here, however, there is no semblance of authority for a replevin bond at six months, and it follows that the execution which issued thereon was of no effect, and conferred no power

Walker vs. McKay.

upon the sheriff to make the sale through which appellant attempted to derive title.

It seems to us, therefore, that the instruction complained of was proper, and the judgment is affirmed.

CASE 63 OCTOBER 4.

Walker vs. McKay.

APPEAL FROM JEFFERSON COUNTY COURT.

1. The principle is well settled that a set-off, to be available, either at law or in equity, against an assignee, must have existed before notice of the assignment.

2. A surety, until he pays the money for his principal, has no available demand against him which amounts either to a set-off or an equitable discount.

3. A debt or demand cannot be used as a set-off until it becomes due; and unless it be due before notice of the assignment, it is not available against the assignee. (1 Met., 112.)

4. The insolvency of the principal, at the time he assigns a note held by him upon the surety, does not entitle the latter to an equity against the note in the hands of the assignee, he not having paid the debt for which he was surety until after he had notice of the assignment. The mere fact that he was the surety of the assignor on another note, who was insolvent at the time the note sued on was assigned to the plaintiff, and also at the periods when both notes were executed, would not entitle the defendant to a set-off, nor constitute an equitable defense to an action on his note, either in the name of the assignor or assignee.

PIRTLE & BALLARD, for appellant, cited Rev. Stat., p. 193, sec. 6; 1 Blackford, 226; 1 Freeman's Chancery, 273.

CHIEF JUSTICE SIMPSON DELIVERED THE OPINION OF THE COURT:

J. B. Walker was surety for Caroline Walker on a note for $492 95, which became due on the 21st day of December, 1856. After the execution of the note on which he was her surety, he executed to her a note for one hundred dollars, which note she assigned to McKay in March, 1857, it being then due and unpaid, and J. B. Walker was immediately thereafter notified of the assignment.

Walker vs. McKay.

He was subsequently compelled to pay the note on which he was surety for Caroline Walker, she being insolvent, not only at the time she assigned the note to McKay, but also at the periods when both notes were executed.

McKay having sued upon the note assigned to him, J. B. Walker claims a right to set off against it so much of his demand against Caroline Walker for the money he paid as her surety as will satisfy and discharge it. His right to this set-off is the question to be decided.

The principle is well settled that a set-off, to be available, either at law or in equity, against an assignee, must have existed before notice of the assignment. Had the demand relied upon in this case as a set-off any existence at the time the defendant was notified of the assignment of his note? The principal does not become the debtor of the surety until the latter pays the debt for which he is liable as surety. He could not set up and rely upon the mere fact that he was surety, as entitling him to an equitable discount against his own note, even if it remained in the hands of his principal, who was insolvent, and the action had been brought upon it in her name. A surety, until he pays the money for his principal, has no available demand against him which amounts either to a setoff or an equitable discount. He may maintain an action against him to compel him to discharge the debt or liability for which he is bound, and may, under the provisions of the Civil Code, obtain any of the provisional remedies mentioned in title 8, upon the grounds and in the manner therein prescribed. (Secs. 728, 730.) But insolvency alone would not of itself enable him to resort to the use of any of these provisional remedies.

The doctrine that a debt or demand cannot be used as a setoff until it become due, and that unless it be due before notice of the assignment, it is not available against the assignee, is fully established by adjudged cases. (Graham vs. Tilford & Barkley, 1 Met. Ky. Rep., 112, and the cases there cited.)

In the case of Baker vs. McKim, (MS opinion, December term, 1857.) it was decided by this court that the insolvency of the principal, at the time he assigned the note of the surety, did

Walker vs. McKay.

not entitle the latter to an equity against the note in the hands of the assignee, he not having paid the debt for which he was surety until after he had notice of the assignment. The question in that case was the same precisely that is now presented in this one, and we are still of the opinion that it was then correctly decided.

And in the case of Bowman, &c., vs. Halstead, &c., (2 Marsh., 201,) the court held that an obligor in an assigned note could only rely upon an existing available defense against the note at the time he had notice of the assignment; and the fact that he was the surety of the assignor at the time of the assignment, and had been subsequently compelled to pay the debt for him, did not entitle him to any relief against the assignee.

The rights of a surety against his principal are two-fold. He may pay the debt, and thereby become his creditor, having a demand against him which he can assert by motion, or as a set-off, by way of defense. Or he may, without paying the debt himself, bring an action to compel his principal to pay it, in which action he may obtain an attachment upon any of the grounds mentioned in the 221st section of the Civil Code. The charge of insolvency alone is, however, insufficient to authorize an attachment to issue. (Clarke, &c., vs. Seaton, 18 B. Mon., 230.) Nor does the mere insolvency of the principal furnish an equitable defense against the payment of a debt due to him by the surety.

The appellant not having paid the debt for which he was surety at the time he was notified of the assignment of his own note, had at that time no available set-off or defense against it. The mere fact that he was the surety of the assignor on another note, and that she was insolvent, would not constitute an equitable defense to an action on his note, either in the name of the assignor or the assignee.

Wherefore, the judgment is affirmed.

Allard vs. Smith.

CASE 64-PETITION ORDINARY-OCTOBER 4.

Allard vs. Smith.

APPEAL FROM M'CRACKEN CIRCUIT COURT.

1. The rule of practice which required bills of exceptions to be filed in term time has not been changed by the Code.

2. An order was made allowing forty days to prepare a bill of exceptions containing a statement of the evidence, to which both parties excepted. The bill was made out, signed by the judge and filed, in vacation, the clerk certifying that the parties filed it in his office. Held-That it forms no part of the record.

3. In an action to recover damages for an alleged breach of an agreement to marry, an instruction that if the jury believed the plaintiff ought to recover, but disagreed as to the amount," they have the right, each one, to set down the sum he believes ought to be recovered by the plaintiff, and add them all together, then divide the sum total by the number 12, and find that amount, 12th part, in damages, if they think proper to do so," is erroneous.

4. An instruction to the jury that every material allegation in plaintiff's petition, not denied by the answer, must, for the purposes of the action, be taken as true, is improper and erroneous. (1 Met. Ky. Rep., 570.)

5. Mutuality of obligation is essential to a contract to marry.

6. Where the plaintiff was induced by the false statements of a third person to write a letter to the defendant discarding him, and releasing him from his engagement and promise to marry her, which letter was received and in good faith acted upon by him, he having had no participation in or knowledge of its fraudulent procurement from aer, she cannot recover in an action for an alleged breach of such promise.

J. W. CROCKETT and L. D. HUSBANDS, for appellant, cited Kelsoe vs. Ellis, 10 B. Mon.

JAMES HARLAN, for appellee, cited 3 Marshall, 360; 17 B. Mon., 608; act of March 5, 1856, Sess Acts 1855-6, page 59; 3 Dana, 446; 6 Dana, 149; 12 B. Mon., 128; Porter vs. January, MS. opin. July, 1856; Reuben vs. Robinson, MS. opin. June, 1857.

JUDGE DUVALL DELIVERED THE OPINION OF THE COURT:

Rosetta A. Smith brought this action against Allard, to recover damages for an alleged breach of an agreement to marry.

A verdict and judgment having been rendered in favor of the plaintiff for two thousand dollars, and the motion of the defendant for a new trial having been overruled, he has appealed to this court.

VOL. 2-37.