
    CREAGER v. MINARD, ET AL.
    Setoff in chancery by surety — depositions not taken ten days — continuance after hearing.
    Where the complainant is a judgment debtor of an intestate estate, and has a judgment against him in favor of a third person, as surety for the intestate, and is the assignee of a separate judgment for the same debt against the intestate, he will be permitted to apply the sum he owes to pay the security debt, or if the estate is insolvent, so much as would be distributed to the debt for which he is surety.
    Where depositions are taken within ten days before the court, they cannot be read if objected to, but if ruled out, the court may grant a continuance that they may be taken over again.
    In Chancery. This case is stated in the opinion of the court.
    
      Fishback for the complainant.
    
      Fox contra.
   BY THE COURT.

The complainant purchased land of one Flommerfelt and paid him for it less $296, for which a judgment was recovered at law, that is yet unsatisfied. The complainant went security for Flommerfelt to one Lowry for $600, for which debt a judgment was recovered at law against Flommerfelt alone, a part of which still remains unsatisfied, and Lowry still holds the complainant responsible, and still has a separate judgment against him. Lowry has assigned to him all his interest in the judgment against Flommerfelt, though the amount was not paid by the complainant. The real question is, can the complainant retain the sum he owes the estate and apply it to satisfy Flommerfelt’s debt, for which he is security. If the estate of Flommerfelt is solvent, he may do so: 520] *but if insolvent, he can only retain the share of the estate which would be distributed to Lowry’s debtors.

The depositions offered to prove the contested facts, not having been taken ten days before the court, being objected to, must under the rule of the court, be rejected.

By agreement the cause was continued to take the depositions over again.  