Lowrie v. Stewart , 8 Ala. 163 ( 1845 )

COLLIER, C. J.

— In Winston v.The Trustees of the University, 1 Ala. Rep. 124, it was determined that in an action of as-sumpsit on the common counts, a plea of the statute of limitations ofthree 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 sqt off money due him from the 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 J udge. See also Crockford v. Winter,-1 Camp. Rep. 124.

It results from the view taken, that the judgment of the Circuit Court is affirmed.