Minter v. Br. Bank , 23 Ala. 762 ( 1853 )

PHELAN, J.

There is nothing in the point that the Bank neglected to present the note on which the plaintiffs in error were sureties only against the estate of Pritchard, their principal, within eighteen months after the grant of letters on his estate, and so lost its remedy on him, and that they, as sureties, will be allowed to stand in the same position as their principal. The question is already settled to the contrary, in the case of McBroom v. The Governor, 6 Por. 32.

The bill, as to the demand for interest on the judgment from 1844, when the money, as it is alleged, was tendered to the Bank and refused, would, we incline to think, have equity in it, if this allegation were not deprived of its force by the adoption of the letter of Mr. Holcombe, the assistant commissioner, to the solicitors of the complainants, as part of the bill. The statements of this letter relating to the subject matter of the bill are thereby made the statements or averments of the bill, since they are not in any manner qualified, but simply annexed by way of exhibit, and prayed to be taken as part of the bill. This letter states directly, that the receipts of Connolly, the sheriff of Dallas, as for money received of Gayle and Minter in 1844 in full satisfaction of the execution, and endorsed upon it, were nullities, and were so pronounced, and the same, as a return of the sheriff, set aside by judgment of the Circuit Court of Mobile, after a full hearing in 1848; and that execution on the judgment was ordered to proceed,

This is equivalent to an admission in the bill that, in 1848, the return of the sheriff was, upon a full hearing, which implies of course due notice to the complainants, set aside, and the execution ordered to proceed. Such an admission, it must be seen at once, does away with the force of that part of the bill which alleges that the money had been paid, that the same was after-wards tendered and refused, and praying that no interest should be allowed from the time of the tender and refusal.

On the motion to set aside the return of the sheriff, it was competent for the defendants in the execution (the complainants in this bill) to have shown that the money had been paid, as the return showed, and had been tendered and refused, and by tendering it then anew, to avoid interest, and any further issue of execution. If this was not done or attempted, and the complainants have not explained the omission satisfactorily in their bill, the presumption exists that, as there was a lawful opportunity to submit that defence to the further issue of execution and the payment of interest, it was done, and the matter is res adjudicata.

Putting this construction upon the bill as a whole, and we see no way to avoid it, the decree of the Chancellor dismissing it for want of equity was proper. *

We are, however, of opinion that the bill should be dismissed without prejudice. Let a decree be rendered here accordingly, at the cost of the plaintiffs in error.