
    Hanchett v. Gray and others.
    It may well be questioned whether intervenors can except to past proceedings for mere formal defects; but there is no question as to their right to interpose a general demurrer or exceptions going to the merits oí the action. (Noto 75.)
    Where the plaintiff alleged that the defendant had recovered a judgment against himself and one W. for $750. but that theretoiore the plaintiff had recovered a judgment against the defendant for $700.36, upon which there had been an execution with a return of “no property,” and that the said defendant had no property, within the knowledge of the plaintiff, with which to satisfy the debt, praying that the two judgments might be set off against each other: Held, On a demurrer by intervenors, that the allegations presented a proper case for the relief prayed tor. (Note 76.)
    It seems that it is notneeessary for debts to be mutual and due in the same right, in order to be capable of being set off against each other, where the party against whom the set-off is pleaded is alleged to be insolvent. (Note 77.) Note 75. — Eccles v. Hill. 13 T., 65; Williams v. Wright, 20 T„ 499; Graves a. Hall, 27 T.,148; Smith v. Allen, 28 T., 497; Smalley v. Taylor, 31 T., 668. Intervention will not be permitted where there is no privity between plaintiff and intervenor. (Burditv. Glasscock,25 T. Supp.,45; Robb v. Smith, 40 T., 89.) A judgment dismissing a petition of intervention is not such a final judgment as will authorize an appeal by the intervenor, before final judgment on the matters in issue between plaintiff and defendant. (Stewart v. Tile State, 42 T., 242.)
    
      Error from Walker. On the Gth clay of October, 18-18, the plaintiff in error filed his petition, alleging that on that day the defendant in error, Gray, a resident of that county, had recovered a judgment in that court against the petitioner and one Wilcox, for $750; that theretofore, on the 31st day of March, 1847, the petitioner had recovered against Gray a judgment for $709.36; that on tiie last-named judgment execution liad issued to the sheriff of that county, and liad been returned by him with a credit of the costs aud $4.33 on the judgment ; and that the sheriff made the further return that there was no property of the defendant to be found in ills county. The petition further stated that Gray had no property in his possession, within the knowledge of the petitioner, with which to satisfy the debt; that Wilcox lias no property or effects with which to satisfy the judgment recovered by Gray against him and the petitioner; that the entire judgment must be satisfied by the latter; and that, unless restrained. Gray would transfer or proceed to collect the same of him, while he would be unable to collect his judgment recovered against Gray; that lie had applied to the latter to apply his judgment to the satisfaction, pro tanto, of the judgment- obtained by Gray against himself and Wilcox, which Gray refused to do. He therefore prayed an injunction, which was granted.
    Afterwards the appellees, Potter and Ilay, intervened, claiming to be the owners of the judgment recovered by Gray against Hanchett and Wilcox, by the assignment thereof to themselves by Gray, on the day of its rendition. They demurred generally, aud excepted to the petition and the order granting the injunction, for the following canses :
    1st. That the petition did not state the residence of the parties.
    2d. That there was no sufficient affidavit of its truth.
    3d. That the bond was insufficient.
    Whereupon they moved the court to set aside the order granting the injunction, and to dismiss the petition. They further answered to the merits.
    At the Fall Term, 1851, the court sustained the demurrer, dissolved the injunction, and dismissed the petition, and gave judgment for the defendant Gray, for the use of the intervenors, against the plaintiff and his sureties in the injunction bond. The plaintiff brought a writ of error.
    
      Yoalcam Sf McCreary, for plaintiff in error.
    
      M. M. Potter,, for defendants in error.
    I. The intervenors had the right to set up any legal exception to the proceedings on the part of Ilanchett that Gray could; otherwise plaintiffs and defendants might collude, to the manifest injury of the parties really in interest — as, for instance, in this cause, it may well be that Gray would be willing that Hanchett should apply the judgment against Hanchett and Wilcox to the satisfaction of the judgment of Ilanchett v. Gray, as by that means Gray would be paying $1,450 with a judgment of $750.
    
      II. The proceedings on the part of Hanchett to obtain the injunction were wholly insufficient, and do not show any cause or right for the intervention of the court; the object being to set off a judgment of Hanchett v. Gray against a judgment of Gray v. Hanchett and Wilcox; and it is well settled, both at law and in equity, that joiiit'and separate demands cannot be set off- against each other. The demands must be mutual, and due to and from the same persons, in the same capacity. (Albright ». Aldriche’s Adrn’r, 2 Tex. R., 1GG; Dale v. Coolte, 4 Johns. Oh. R., 11; Duncan v. Lyon, 3 Id., 351; Murry v. Holland, Id., 573; 2 Story’s Eq. Ju., sec. 1437; Leeds v. Marine Insnr. Co., 6 Wheat. R., 571, in 5 Cond., 188; Tucker v. Oxley, 5 Cr., 34, in 2 Cond., 182.)
    There are exceptions to this general rule, as shown in the foregoing authorities, but this case is not within the exceptions. The petition does not even state that Gray was insolvent, but carefully avoids such a charge.
   Wheeler. J.

IVe have carefully examined the record, and are unable to perceive any legal ground on winch the judgment of the court can be sustained.

It may well be questioned whether the'intervenors could he permitted to except to tlio proceedings for mere formal defects or irregularities, not going to the merits or foundation of the action.

In Louisiana it is held that a third person intervening- cannot plead exceptions having for their object the dismissal of the cause for irregularities in the proceedings. (4 N. S., 488; 8 M. R., 55.) Such a party, it is held, cannot take advantage of the insufficiency of the oath or bond on which process of attachment issues. (3 La. R., 183.)

But if the exceptions to the sufficiency of tile affidavit and bond, on which the order for an injunction was obtained, were rightly entertained and were well taken, they did not go to the merits and did not authorize a dismissal of the petition. (Merritt v. Clough, 2 Tex. R., 582; Hart. Dig., p. 494.) The objection to the want of a sufficient statement in the petition of the residence of the parties, if it were competent for the intervenors to urge that objection, was cured by amendment.

It unquestionably was competent, however, for tiie intervenors to interpose a general demurrer or exceptions going to tile merits of the action. They might well controvert the plaintiff’s title or rig-lit to recover on the merits in law and fact. And it is insisted that the petitioner ivas not entitled to the relief sought, because the respective judgments of the parties were not in the same right. But adjudged cases of high authority have held the law to be otherwise.

In Simson v. Hart, (14 Johns. R., 63,) it was held that “ where A recovered a judgment against B and C, and B recovered a judgment against A, B being-insolvent and A. much embarrassed, A was entitled to have' the judgment recovered by him against B and C applied in satisfaction of or set off against the judgment recovered by B, and might sustain a hill in chancery for that purpose.” Spencer, J., said: “There is no force in the objection that the judgments are not in the same right; it is well settled ‘that although the demands, as being joint and several, are not. strictly speaking, due in the same right, yet if the legal and equitable liabilities of many become vested in or may be urged against one, they may be set off against separate demands, and vice versa ; ’ (Bull., N. P., 336 ; 2 H. Bl., 587; 4 T. R., 123;) and in some of the cases this was done without any pretence of insolvency in either of the parties.” (Id., 74.)

And in Goodenow v. Buttrick, (7 Mass. R., 139,) it was held that “where A obtains a judgment against B and C, and at the same time B recovers a judgment against'A, if B will acknowledge satisfaction of the amount of A’s judgment agaiust C and himself in part of his judgment against A, the court will stay A’s execution and give B and C their execution for the balance.”

Chief Justice Parsons said : “ We do not consider die objection of any weight, that Goodenow and Gates are debtors on one execution and Gates alone the creditor on the other; for Gates might satisfy the execution against Goodenow and himself, and if he thought proper to apply his execution against Jewell to that purpose, he might; and on Jewell’s execution being satisfied by Gates, the officer ought immediately to have redelivered to Goode-now his chattels, on being reimbursed his expenses.”

Note 76. — Bradford v. Hamilton, ante. 9.

Note 77. — See Duncan v. Magette, 23 T., 245.

We think the averments of the petition present a sufficient prima facie case of insolvency on the part of Gray to entitle the plaintiff, under the law as maintained in the authorities to which we have referred, to the relief sought. The correctness of these adjudications cannot, we think, be successfully questioned. We are of opinion that the court erred in its judgment sustaining the demurrer to the petition and dismissing the case. The judgment is therefore reversed, and the cause remanded for further proceedings.

Judgment reversed.  