
    
      Atwood vs. Harrison, et al.
    
    Chanceen
    Appeal from the Green Circuit; Benj. Monkoe,-Judge.
    
      Matter in avoidance. Defendant. Answer.
    
    April 5.
    Matter in avoidmue^tobe availing, must e prme ‘
   Chief Justice Robertson

delivered the opinion of the court.

Peter B. Atwood having obtained a judgment guando acciderint against B. W. Dudley and Wiric H. Earnest, executors of Charles Wilkins, deceased, filed his bill in chancery against them and Joseph Harrison, alleging that Harrison was indebted to the executors, and praying for a discovery and for an injunction restraining the amount due in his hands, and a final decree subjecting it to the satisfaction of the judgment, pro tanto.

The executors did not answer, although'the subpoena in chancery was served on them.

Harrison in his first answer, admitted that he owed the executors a specified quantity of iron, to be delivered on demand. But in an amended answer, he alleged, that prior to the filing of the bill, the executors had directed him to deliver tSe iron to Frederick B. Earnest, to whom they had transferred their right, and to whom, therefore, he had assumed to deliver the iron. He, therefore, prayed that F. B. Earnest and Atwood might interplead.

F. B. Earnest thereupon, filed an answer in the nature of a cross-hill against Atwood and Harrison. Atwood answered the cross-bill and required proof of its allegations. Harrison did not answer it, nor was any subpoena upon it, ever served on him.

Letters between the executors, Harrison and F. B. Earnest were exhibited; but there was no proof of their genuineness, nor was there any other proof in the cause.

In this stale of case, the -circuit court dismissed the bill; and Atwood appealed to this court.

. Harrison’s original answer, having admitted his indebtedness to the executors without qualification, the matter relied on in his amendment, was merely in avoidance, and could not, therefore, be availing without satisfactory proof.

A defendant in chancery.^ s'erved with process, by a failure to an-the aRega-S tions of the bill.

Mills and Brown, for appellant; Chinn, for appellee.-'

f There was no regular interpleader, as the brief history which we have given of the proceedings will show; and if there had been, there was no evidence which could sustain the claim of F. B. Earnest.

The executors, by not answering, admitted the allegar' lions of the bill. They were not made parlies to the cross-¿y JP. B. Earnest; and he did not attempt to prove íitáí ^la c^m to the iron had been purchased by him, or that he had any right to it, either legal or moral. The circuit court ought,'therefore, to have decreed in favor ^le appellant. But, in rendering such a decree, it would have been proper, as there is no proof, that the iron had been demanded, or was due without demand, to have given Harrison reasonable time to deliver it; and if delivered, to have subjected it to sale, in part satisfaction of the judgment; but, if not delivered, to have'ascertained its valué, and decreed that to the appellant.

Decree reversed, and cause remanded, for proceed* jngs and decree consistent herewith.  