
    Polly Wadlington, Executrix of Mercer Wadlington, deceased, vs. Allen Gary.
    Where a bill of exceptions refers to papers, without incorporating them in the bill, the high court of errors and appeals cannot notice the papers referred to.
    Mere indulgence granted to the principal in anote, without the consent of the surety, does not release the surety; to release the surety there must be a valid agreement for indulgence, founded upon a sufficient consideration; such an agreement as can be enforced in a court of justice.
    Indulgence granted to the principal in a note, without the consent of the surety, upon the promise of the principal to pay the note out of the proceeds of a particular judgment; or, if that failed, then out of a particular note, will not release the surety ; the creditor having no means of enforcing either promise.
    J. W. with G. as his surety, executed a note to the executrix of M. W.; J. W. died, and F. G. W., his administrator, who was one of the distribu-tees of the estate of M. W., directed the executrix to retain the note out of his distributive share, which was not done; the executrix sued G., the surety of J. W. on the note, and G. plead payment: Held, that the debt being due from J. W. and the distributive share being due to his administrator, there was an absence of that mutuality, which is essential to the right of set-off; that the executrix could not compel compliance with the direction of F. G. W., and it did not therefore amount to a payment of the note.
    ErkoR, from the circuit court of Carroll county; Hon. Morgan L. Fitch, judge.
    On the 18th day of February, 1841, Polly Wadlington, as the surviving and sole acting executrix of Mercer Wadlington, deceased, filed in the office of the clerk of the circuit court of Carroll county, a declaration in assumpsit against Thomas H. Gamer and Allen Gary, founded on a promissory note for eight hundred and twenty-eight dollars, drawn by James Wadling-ton, Thomas H. Gamer, and Allen Gary, in favor of the executors of Mercer Wadlington. The process was returned not found as to Thomas H. Gamer, and executed on Allen Gary. At the return term the defendant, upon whom the process was served, filed, under oath, a plea in abatement, which averred that Warner W. Wadlington and William Pack were appointed executors of the last will and testament of Mercer Wadlington, deceased, jointly with the plaintiff; that the will was duly proved in the probate court of Madison county, Mississippi, and that Warner W. Wadlington and William Pack were still living, and not joined in this action. The plaintiff demurred to this plea, and the court sustained the demurrer, and rendered a judgment of respondeat ouster. The defendant then filed three pleas. 1st. That the note sued on was made by James Wad-lington as principal, and defendant signed the same as surety, for the accommodation of James; that after the note became due James Wadlington died, and letters of administration on his estate were granted by the probate court of Madison county to Felix Wadlington; that Felix Wadlington had obtained a judgment in the circuit court of Madison county against - Jones, for a large sum of money, to wit, two thousand dollars, on which judgment an execution was issued, and levied on sufficient property to satisfy it; and that before the day of sale it was agreed by Felix Wadlington, and Warner W. Wadlington, then acting as executor of Mercer Wadlington, deceased, and who then held the note sued on, that if Felix would transfer and assign to Warner a sufficient amount of the judgment against Jones to satisfy the note, Warner would forbear to sue on the note; that Felix did make a transfer of a sufficient amount of the'judgment to satisfy the note, and authorized Warner to draw the money from the sheriff; and in consideration of such agreement and transfer, Warner, without the knowledge or consent of the defendant, did forbear to bring suit on the note, until the day of the sale of Jones’s property, and for some time thereafter. 2d. A plea of payment. 3d. That the defendant signed the note sued on as surety for James Wad-lington, who was the principal; and after the death of James Wadlington his estate Avas released from the payment of the note by the executors of Mercer Wadlington, for and in consideration of the assumption and promise of Felix Wadlington, who was then acting as administrator of James Wadlington, that he would pay the same out of his own goods and chattels. To these three pleas the plaintiff filed replications traversing the averments of the pleas, and upon them issues were joined. At the October term, 1842, the case was tried, and a verdict and judgment were rendered for the defendant;’ and upon the motion of the plaintiff a new trial was granted. At the April term, 1843, another trial was had, and a verdict and judgment were rendered in favor of the plaintiff; and upon the motion of the defendant a new" trial was again granted by the court. To the granting of a new trial by the court the plaintiff filed a bill of exceptions, which, the court refusing to sign and seal, it was certified by two practising attorneys of the court. This bill of exceptions simply refers to the motion and affidavit upon which it was based, as follows: “ Be it remembered that, upon the motion for a new trial,” “ (here insert it.)” “ And upon the affidavit of Allen Gary,” “ (here insert it.)” Both the motion and affidavit are then spread out in the record. None of the evidence given upon the trial is set out in this bill of exceptions. At the October term, 1843, the case was tried a third time, when a verdict and judgment were again rendered in favor of the plaintiff. Upon motion of the defendant the court a second time granted him a new trial, to which the plaintiff tendered a second bill of exceptions, which also omits to set out any of the evidence offered or given upon the trial; and only refers to the motion for a new trial, and two affidavits and a certificate upon, which the motion was based; the motion, one of the affidavits, (the other the clerk states in the record was lost,) and the certificate, were copied into the record, but it is not considered necessary that the substance of either should be stated here. During the progress of the second and third trials the defendant filed several bills of exception to opinions of the court, ruling out evidence offered by him, none of which need be noticed, as neither entered into the consideration of the court. At the April term, 1844, the cause was tried a fourth time, when the jury found in favor of the defendant; and the court entered judgment thereon accordingly. The plaintiff moved for a new trial because the verdict was against the law and evidence; and because the jury disregarded the instructions of the court. Upon, his motion being overruled by the court he filed a bill of exceptions, which substantially discloses the following facts, to wit: That upon the trial the plaintiff read to the jury the note sued on, and rested the case. The defendant then introduced Warner W. Wadlington, who testified that the note sued on was given for a negro sold by the executors of Mercer Wadlington to James Wadlington, and the defendant was only the.surety of James Wadlington; that the witness acted as one of the executors of Mercer Wadlington, until some time during the year 1840; and while he was so acting, the note being in his hands, and past due, he presented it to Felix G. Wadlington, who was the administrator of James Wadlington, the principal in the note, and demanded payment, and threatened to sue him if the note was not paid; when Felix G. Wadlington agreed that if he would forbear to bring suit, he might retain out of the proceeds of an execution, then in the hands of witness, as deputy sheriff of Madison eounty, which had been issued on a judgment recovered by Felix G. Wadlington against- Jones, and was part of the assets of the estate of James Wadlington, and which had been levied on property of Jones, that was soon to be sold, a sufficient amount to discharge the note; that relying upon that agreement, and in consideration thereof, he did not sue on the note; that on the day appointed for the sale of Jones’s property Felix G. Wadlington ordered the sale to be postponed ; that after the sale was postponed, by the directions of Felix G. Wadlington, he again demanded payment of the note, and threatened to sue if it was not paid. And Felix again promised if suit was not instituted the execution against Jones should not be suspended any longer, and the note should certainly be paid out of the proceeds of that execution; but if anything should happen to prevent the payment of the note out of the proceeds of the execution, Felix promised to transfer to him a note on William Barrow, who was perfectly solvent, in payment of the note sued on. And he again agreed with Felix, in consideration of these promises, to forbear to bring suit; all of which, he said, was without the knowledge or consent of the defendant. The witness further testified, that after Felix G. Wadlington failed the second time to pay the note out of the proceeds of the judgment against Jones, and bad also failed to transfer the note on Barrow, according to his promise and agreement, Felix G. Wadlington, who was one of the distributees of the estate of Mercer Wadlington, agreed with him, that he should retain the amount of the note sued on out of his, Felix’s distributive share of that estate after which time he always considered the note as settled in that way. On being cross-examined the witness stated that when he settled with the probate court, and surrendered his letters testamentary, he returned the note sued on as part of the assets of the estate of Mercer Wadlington; that the defendant was his neighbor and son-in-law and had never requested him to sue on the note, nor said anything to him about it. The defendant also introduced another witness, who proved that Felix G. Wadlington had some time before the trial given him an order on the plaintiff for one hundred dollars, tobe paid out of the estate of Mercer Wadlington, deceased; but the order had not been paid. The will of Mercer Wadling-ton, and various transcripts of records from the probate court of Madison county, are referred to in the bill of exceptions, and by the clerk copied in the record; but none of them, under the opinion of the court, need be noticed.
    The plaintiff brought the case to this court by writ of error.
    
      A. C. Baine, for plaintiff in error.
    The first obstacle to the reversal of this judgment will doubtless be a technical one, that the matter of the bill of exceptions cannot be inquired into — a great deal of it — because it was not incorporated at the time, but ordered to be done by the judge by a reference to the paper to be inserted. It strikes me the objection, in this case, is without even a technical force. For you have the same authority for believing these papers to be a part of the record, that you have to believe the judge signed a bill of exceptions at all. The ground for the belief of either is the certificate of the clerk. You rely upon that to show that there is any record.
    But granting I am wrong in this, I think this case will then fall within the exception in Goode v. Lesiccnm, 1 How. 283; “ A case where the reference is made with such apt descriptions of documents intended to be incorported in the bill of exceptions, as to leave no possibility of doubt,” &c. is an exception. This, I take it, applied to a case where the paper was not even in the bill. See same doctrine in nearly the same words in Berry v. Hale, 1 How. 319.
    I may here remark that there is not throughout the record a particle of legal proof in support of the third plea, that Felix Wadlington became liable, or promised to pay the note sued on out of his share of Mercer’s estate. For the witness who states this fact, also expressly states, that no written promise or obligation was given. It is then certainly void by the statute of frauds, even if sufficiently proved. For an administrator cannot become liable for his intestate’s debt without an express undertaking in writing.
    About the last verdict (which resulted for the defendant) I have little to say. The full proof that the defendant wanted to make, .but by his negligence was unprepared to make, on the verdicts which were had for the plaintiff, was made on the last trial. I do not think, upon examination, Warner Wadlington’s testimony (for the record evidence only became material to show his authority,) shows a binding and valid agreement, for a specific time, founded on good consideration, under the rule in Newell & Pierce v. Hamer, 4 How. 684.
    The parties themselves (Warner and Felix Wadlington, in the several representative capacities) evidently did not regard them as such. For they repeatedly acted as if there were no-such agreement.
    But if the court should come to a different conclusion, still it is immaterial, for the judgment in our opinion must be reversed, for the error of the judge in granting new trials upon eúher of the verdicts that were had for the plaintiff.
    
      
      Sheppard, for defendant in error.
    This court cannot revise the orders of the circuit court, granting new trials at the April and October terms, 1843.
    The bills of exceptions taken by the plaintiffs do not conform to the provisions of the statutes allowing an appeal from such orders. They do not contain the substance of the evidence, nor the matters in which the judgment of the court was pronounced. The presiding judge very properly refused to sign the'first bill of exceptions for this cause. The second bill of exceptions does not contain the affidavit of Gary. And the two documents which it attempts to bring before this court were not embodied in it in any other manner than by a reference of “(here insert.)” These documents are not connected with the cause. And it has been decided by this court, that such a reference is insufficient. Berry v. Hale, 1 How. Rep. 315. If all the evidence in the cause is not fully set forth in the bill of exceptions, the judgment or order will be affirmed. Carmichael et al v. Browder's Ex'rs. et al. 4 How. Rep. 431.
    The last bill of exceptions taken to the order refusing to grant a new trial, at the April term, 1844, presents the whole merits of the case.
    The proof fully sustained the issues on the part of the defendant. It shows 1. Such an agreement to forbear suit as would discharge a surety. 2. Sueh laches on the part of the creditor in failing to collect collateral securities which were sufficient to discharge the debt, as will also warrant the release of the security. 3. That the debt was settled.
    The rule is now well settled, that any pending agreement to forbear suit but for a day, will discharge the security, if done without his consent. The proof shows that James Wadling-ton, the principal obligor, and that Felix Wadlington, had recovered, as his administrator, a judgment against Jones, which was about to be executed by levy and sale of property under a fi. fa. The agreement stipulated that the executors should forbear suit until after the day of sale of the property so levied on ; and in consideration of such forbearance the executor, who was also deputy-sheriff, was authorized to slop, retain, and 
      draw from the hands of the sheriff, so much of the proceeds of said judgment as would satisfy the debt.
    This was in fact an equitable assignment of the judgment. Any agreement which shows an intention to appropriate the whole or part of a debt to a particular purpose, will be enforced in equity as an assignment. The executor had a right to detain and draw the proceeds from the sheriff’s hands.
    An order given by A. to B. to draw from C. a given sum, will be upheld in equity, as an assignment of so much of the funds of A. in possession-of C., though C. should not accept or assent to it. 2 Story’s Equity, 310, 311; Heath v. Hall, 4 Taunt. Rep. 326.
    
      2. By such assignment the proceeds of the judgment became a trust fund for the payment of the debt. And though taken by the creditor it enured to the benefit of the security. The laches of the creditor in failing to secure this fund and suffering it to be lost, discharges the security.
    No doubt can exist but that under the agreement the execu--tors could have enjoined Felix Wadlington from collecting said judgment, or in any manner interposing to prevent them from collecting therefrom a sufficient amount to pay the debt.
    3. It is shown by the bill of exceptions that Felix Wad-lington directed the executor to retain the amount of the debt from his share of the assets of Mercer Wadlington, in possession of the executor, and he thus considered the debt settled.
   Mr. Justice Clayton

delivered the opinion of the court.

James Wadlington purchased property at the sale of Mercer ■ Wadlington, deceased, and gave his note with Gary, as his surety. The principal in the note afterwards died, and Felix G. Wadlington became his administrator. Suit was-brought upon the note in the Carroll circuit court. There have been four verdicts rendered in the cause; the first in favor of the defendant; the two next for the plaintiff; and the last in. favor of the defendant. The plaintiff filed bills of exceptions to the orders, granting new trials on the verdicts obtained by her, but they are too imperfect to authorize a reversal of the decisions. Instead of stating the facts, they refer to papers not incorporated in the bills. According to repeated determinations these cannot be here noticed. Barfield v. Impson, 1 S. & M. 330; Carmichael v. Browder, 4 How. 431. On the last verdict the motion for a new trial was overruled, and a bill of exceptions taken to this order. This bill of exceptions is also defective in form, since it refers to certain papers, and does not set them out. Yet their substance is set out, in a way which complies with the requisitions of the statute on the subject. In the other exceptions, the substance is not given, except by way of reference.

The defence set up in the case, is first, time granted to the principal without the consent of the surety, and next, payment of the note by the administrator of James Wadlington. There is no doubt, but that time was granted to the principal. But mere indulgence does not release a surety. There must be a valid agreement for indulgence, founded upon a sufficient consideration— such an agreement as can be enforced in a court of justice. The rule is very clearly laid down by the court, in Newell v. Hamer, 4 How. 690. The agreement set forth in the testimony is not of that character. It was made with Warner Wadlington, then an executor of Mercer Wadlington, but who is no longer such. If suit had been brought upon the note, a recovery upon it could not have been defeated, by reason of this alleged agreement. Nothing passed to the executor. He agreed to grant indulgence, because of a promise that he should receive payment out of the proceeds of a particular execution, or if that failed, then out of a particular note. The executor had no means of enforcing either of these promises, and the money was not made upon the execution because of the interference of Felix G. Wadlington. This shows the executor had not the control of it, nor the power to enforce the promise. It was like the promise “to deliver cotton,” in Newell v. Hamer.

Next as to the payment. The note was that of James Wad-lington. Felix G. Wadlington, his administrator, was one of the distributees of Mercer Wadlington, deceased, and he directed the executor of Mercer Wadlington to retain the note out of his distributive share. This was not done. The present executrix, the plaintiff in this suit, cannot compel compliance with this direction. She cannot compel it as a set-off. The debt is due/rom James Wadlington — the distributive share is due to his administrator. There is an absence of that mutuality which is essential to the right of set-off

In our view neither ground of defence is sustained, and the judgment must be reversed, and new trial awarded.

Judgment reversed, and new trial awarded.  