Donelson's Adm'rs v. Posey, et al. justed Whatever balance is due from Pearson's estate to Donelson's, upon a settlement of the firm account of P. F. Pearson & Co. shall be set off against Donelson's liability to Pearson; and if it appears, upon taking the account, that the firm of Pearson & Coffee is indebted to the firm of P. F. P. & Co., Donelson's share of such indebtedness is to be added to whatever amount he has paid, or for which his estate was liable at the time of the filing of this bill, and this amount will be set off against the liability of the estate of Donelson to Pearson & Coffee. We have said nothing respecting the firm debts of P. F. Pearson & Co. as the record does not disclose any debts subsisting against said firm, but if such debts do exist, as Pearson's estate is insolvent and Donelson's estate liable for them, they furnish an additional reason for stopping the amount in the hands of Donelson's executrix, rather than a justification for their withdrawal of it, especially as it is proposed to apply the fund when received to individual demands against Pearson. The indebtedness of Donelson seems to be the only assets of the firm of Pearson & Coffee which complainant can identify; beyond that the complainant's relief cannot extend, with respect to the indebtedness of that firm. Let the decree of the chancellor be reversed, and the cause be remanded, that a reference may be awarded to the master to state the accounts between the parties, after which a final decree will be rendered, adjusting the rights of the parties as above indicated. It is proper also to state, that in taking the account as to the debts paid by Donelson's administratrix, or in judgment, none but the necessary cost can be allowed, and the large bills of cost, as exhibited in the record, as well as the supreme court cost and damages, should be disallowed, as unnecessary. Further There appears to be no evidence as to any special agreement between Pearson and Donelson respecting the division of the profits and loss of the concern, or the interest which the parties have in the capital stock on hand at the dissolution. In the absence of such agreement, the law implies they are equal partners, and entitled to moieties. Sto. Lynch v. Bragg. on Part. 31, and cases cited in note 3; Gould v. Gould, 6 Wend. Rep. 263; 9 Ala. 372. We have deemed it unnecessary to review the various decisions referred to by the counsel for the defendants in error as applicable to the doctrine of set-off, and the inapplicability of those decisions of the English courts made under the influence of the bankrupt statutes, as furnishing correct guides in the proper construction of our statute of set-off. The case before us involves a principle of natural equity, growing out of the insolvency of Pearson & Coffee, fortified as it is by the lien of a retiring partner, which places it quite beyond the statute of set-off, and in our opinion calls loudly for the interposition of the power of the chancery court to prevent a threatened injury, which, if consummated, would be remediless. The equity of complainant's bill is upheld by many authorities. 1 Story's Eq. Jurisp. 630-1; Story on Part. 513, 519, 520; Calvit's Ex'rs v. Markham, et al. 3 How. (Miss.) Rep. 343; 8 Ala. Rep. 222; 5 Leigh's Rep. 34; 3 Ibid. 698; 1 Bibb, 519; 4 Monroe, 1; 5 J. J. Marshall, 659; 6 Dana's Rep. 32; Ibid. 305; Lindsay v. Jackson, (Walworth, Ch.) 2 Paige, 581-2; 2 Hamm. (Ohio) Rep. 320; 2 Eq. Cas. Abr. 10; 2 Vern. 117. To these many others might be added, but I forbear. LYNCH v. BRAGG. 1. A surety when sued, may, with the consent of his principal, set off a debt due from the plaintiff to his principal. 2. An account furnished by the clerk of a steamboat, showing that a quantity of wood had been furnished, is competent testimony of a debt due from the steamer, although it may not state with precision the amount due. Lynch v. Bragg. Error to the County Court of Wilcox. ASSUMPSIT by the defendant in error, before his honor D. W. Sterrett. Upon the trial, as appears from a bill of exceptions, the defendant proved that he was surety upon the demand sued for, for one Robert H. Gregg, and then proved a written direction, from the plaintiff to Grigg, to furnish wood to the steamboat Dallas, to the amount of his indebtedness, if called for. He also produced, and offered to read a statement in writing by the plaintiff, showing the account of wood furnished by Gergg, as admitted by the steamboat, which on motion of the plaintiff's counsel was excluded, to which he excepted, and which is now assigned as error. BETHEA and BECK, for the plaintiff in error. COLLIER, C. J.-If the evidence stated in the declaration went merely to establish a set off in favor of the principal on the note on which the defendant is a surety, it should have been admitted. In Winston v. Metcalf, 7 Ala. R. 837, it was said "the principal debtor is liable to indemnify his surety, whenever the latter pays the debt; and when the former has procured a valid set off, we perceive no sound reason why the surety should not be permitted, with his consent and concurrence, to enforce it, in the same manner as if the suit was against both jointly." This decision was made under the influence of our statutes. If the "consent and concurrence" of the principal, that the defendant should avail himself of the account for wood furnished the steamer Dallas, could not be inferred from the possession of the account, it might have been shown by other proof, after the account itself had gone to the jury. The view which we take of the case, renders it unnecessary to inquire, whether the quantity of wood delivered, or the price at which it was sold was unliquidated, so that the account could not come in Lynch v. Bragg. under the plea of set off. Handley v. Dobson's Adm'r, 7 Ala. Rep. 359. The request contained in the note of the plaintiff to Gregg, of the 27th December, 1846, to furnish the steamboat Dallas with wood to the amount (if called on) of what he was indebted to the plaintiff, with an assurance that the latter would be responsible to him for the same, entitled Gregg to demand as a payment on his indebtedness to the plaintiff, all the wood he furnished under the request. This seems to us to be a proposition which is illustrated by its statement. The note declared on was due nearly twelve months previous to the date of the request, and may well be intended to have been referred to by it. If it was a payment, it extinguished the note pro tanto, and the surety might well avail himself of it. The letter of the plaintiff to Gregg, under date the 16th March, 1847, contains a statement as furnished him by the clerk of the steamer, of the quantity of wood received by the boat from Gregg, a part, if not all of which had never been paid for. Conceding this letter did not show with precision the amount admitted by the Dallas to be due, yet no principle of law warranted its exclusion on this ground. Perhaps the defendant might have adduced other evidence on this point; but if he could not, the proof offered should have been allowed to go to the jury, whose province it was to explicate it, and educe such a conclusion as they conceived approximated truth. It follows, that the judgment must be reversed, and the cause remanded. Whitlock v. Heard. 13 776 113 279 WHITLOCK v. HEARD. 1. An agreement, by which mares and colts are placed with another to be fed during the winter, the stock to be liable for the expense of keeping them, and the bailee to have the power of selling them to pay the expense, does not merely give the bailee a lien on the stock for the expense of their keep, but by the terms of the contract, gives him the right to sell so much as may be necessary to discharge the debt due for their keeping. If he sell more than sufficient, it is a conversion, and for such excess he is liable in trover. 2. A purchase by the bailee himself, at a public sale by auction, is not absolutely void, but voidable at the election of the party, whose title is sought to be divested by such sale. Error to the Circuit Court of Cherokee. Before the Hon. TROVER, by the plaintiff in error, against the defendant. In the progress of the trial, a bill of exceptions was sealed at the instance of the plaintiff, which presents the following facts. The plaintiff sent a mare, and some colts, to be wintered by the defendant, and pledged the mare and colts to the defendant to pay for their keeping, and also for another demand, with authority, on a certain contingency, to sell them to pay for their keeping, and the other demand. This other demand, was a note given by defendant to plaintiff, to enable him to raise money on, but which the plaintiff lost at gaming, and plaintiff gave defendant notice not to pay itthe note remaining in the hands of the party winning it, until payment. There was also proof tending to show, that the mare and colts were worth more than the expense of keeping them, and that the defendant advertised them, and had them sold at public auction, the defendant becoming the purchaser at said sale. Under this proof, the court charged the jury, that the defendant was not bound, under the circumstances, to pay the note, and the pledge as to the note |