
    Hollis and Wife v. Border.
    Where an injunction is sought against the payment of money to another and a deoree for its payment to the plaintiff, it is not sufficient for tlio defendant, who is alleged to owe or hold tlio money, to allege in his answer that ho lias paid it over to the person against whom tho plaintiff claims it, but it must be alleged that tho payment was made before the suit was brought, or at least before notice or service of the injunction.
    Where an answer refers to the records of the court instead of setting out the fact relied on, and exceptions to the answer are sustained, and the transcript does not disclose the contents of the record referred to, Qiiere'S Whether it will not be presumed that the record if produced would sustain tlio judgment.
    Where exceptions to the answer are sustained, tho defendant should have leave to amend; but if leave be not asked, judgment goes for want of an answer. If it docs not appear that leave to amend wasasked.it will not bo presumed that leave was refused merely because tho entry after sustaining the exceptions proceeds continuously with final judgment.
    Appeal from San Augustine. The appellee, as surviving partner of the firm of Francois & Border, filed liis petition in the District Court, alleging, among other matters, that in January, 1S45. his firm was indebted by nolo to the firm of Coleman & Simms in the sum of thirty-one hundred dollars; that the latter placed the note in the hands of their attorney for collection ; that the former firm transferred to the latter in payment other notes amounting to thirty-three hundred dollars; that they afterwards, in February, 1845, paid one thousand dollars upon their note to Coleman & Simms, which note was canceled, and a new note given by them for the amount remaining unpaid; that, it was agreed between the members of the two firms that the new note should he placed in the hands of the attorney of Coleman & Simms, and that the notes transferred to them in payment of the original note should also remain in the hands of the attorney for collection, and that the proceeds when collected should he applied to the payment of the new note; that Coleman & Simms did not observe [S3Í3U] their part of the agreement, and did not place the new note in the hands of their attorney, but '’brought suit by attachment and recovered judgment upon it against the makers in the State of Louisiana. The plaintiff further alleged that the attorney of Coleman & Simms retained the notes placed in his hands for collection; that he collected upon those notes twenty-two hundred dollars, and that upon one of them he recovered a judgment against the appellants, Hollis and wife and Johnson and Perkins, who with Coleman & Simms were made defendants. An injunction was prayed to restrain Coleman & aimms from collecting and the other defendants from paying over to them the, money due upon the judgment, and for general relief.
    An injunction was granted and notice thereof served on the defendants, Hollis and wife, in January and February, 1S51. These defendants demurred to the petition, and answered, in October, 1852, admitting the recovery of judgment against them by Francois & Border to the use of Coleman & Simms, but they averred that “the said judgment lias been fully paid off and discharged to “tiie agent and attorney in fact of the said Coleman & Simms, as will appear by “the records of the District Court of San Augustine county; ” wherefore they prayed to be discharged. The plaintiff excepted to the answer, and he replied in substance that the pretended payment was subsequent to the awarding of the injunction, and was unauthorized and void as to him.
    The court sustained the exceptions to the answer, overruled the demurrer to the petition, and gave judgment for the plaintiff. The defendants, Hollis and wife, prosecyfod this appeal and assigned the following as error:
    1st. The sustaining of the exceptions to the answer of these defendants, and
    2d. The giving of judgment final by default against them for the want of an answer.
    Walker, Anlrey and Saxton, for appellant.
    I. We are at a loss to see on what ground the court below acted in striking out the answers of Holiisand wife and Johnson and Perkins. They were made parties to the bill by the plaintiff, and of course were called upon to answer. It seems clear to us" that they lmd a right to set up in their answer anything that would go in discharge of their liability to Coleman & Simms, or would show that as to them the injunction was wrongly asked for and granted. Anything that would show a settlement between them and Coleman & Simms before the bringing of the bill would most clearly show that Border liad no longer any remedy against them, but that his relief, if he was entitled to any, must be. had against Coleman & Simms, and hence the matters set forth in the answer were a good defense against the bill.
    An answer generally controverts the facts stated in the bill, or some of them, and states other facts to show the rights of defendant in the subject-matter of the suit. (Story's Eq. PI., sec. S40.)
    H. In reference to the second ground of exception made by plaintiff Border to the answer of Ilollis and wife, we have to say that there is nothing in the record to show that the payment of the judgment alluded to was made after the judge’s fiat of injunction. Its truth was a question for the ascertainment of the jury. And if this wore true it could only subject the party to the action of the court for contempt, and left all oilier questions as to its being rightly paid open to further adjudication. If the payment by Hollis was right as between him and Border, its being made after the injunction was granted did not change its effect as between them; it only subjected him to punishment by the court'.
    In any view of the case the striking out of the answer of Hollis and wife and rendering judgment as for want of an answer was error. If the answer was impertinent or immaterial, by a universally acknowledged rule of equity pro•ceeding the defendant should have been allowed to amend. (Story’s Eq. PI., secs. S'ü-l, SC3, and notes.) By our statutes, too, a party has always liberty to amend his pleadings when they are found to be defective.
    
      Henderson §• Jones, for appellee.
    It will be seen by reference to plaintiff's exceptions to defendants’ answer that one ground of exception is, that the pretended payment of the judgment of Francois & Border v. Ilollis and others is alleged to have been indorsed upon the record of the same after the commencement of this suit and in contempt of the court granting said injunction. The. court below was called upon to inquire into and decide upon the. sutiicie.ncy and truth of said exceptions. Hollis and wife refer the court in their answer to the records of the court to show how and when said payment was made; and inasmuch as the evidence upon which the District Court acted in determining the motion is not before this court, it must be presumed that it was sufli-•cient to sustain tiie judgment rendered in the case. If the payment or the indorsement thereof by ilollis as agent of Coleman & Simms was made after lllie injunction was granted and served in this case, then it was illegal tend void, ■and afforded defendants no grounds of defense. Such must be presumed to have been the case. Moreover, it does not seem that Coleman & Simms are •claiming the amount of the judgment referred to off of Ilollis and wife and their securities. They, by not opposing and denying the allegations of plaintiff’s petition, confess the truth thereof^ and abandon all clainCt.o the judgment in question; and it matters not to whom Ilollis and wife and their securities pay the same, so as that they are secure against another claimant. It is manifest (hat they do not fear that they will be liable to pay the amount of the judgment to Coleman & Simms, should they now be compelled to pay Border. Coleman & Simms set up no claim and interpose no defense. The sole object of the defendants is to delay the payment of the sum in controversy in this case.
   IYiieklee, J.

The, exceptions to the answer were, we think, rightly •sustained. After service and pending the injunction the defendants could not legally make payment of the judgment to Coleman & Simms. Such payment •would not release them from ultimate; liability to the plaintiff in casi; lie established his right to have execution of the judgment as between himself and the nominal beneficiaries therein, nor could it in any manner affect the rights sought to be enforced by the plaintiff in this suit. The alleged paj’mont, if mail» by the defendants after notice of the injunction served up'on them, was in their own wrong, and cannot avail (hem as against the plaintiff. To have, been effectual as a release from their liability, and to have availed them as a defense, the payment must have been made before the defendants had notice1 of the; in— junction, and that it was so made must have been averred. Yet the answer contains no such averment. Though till'd more than a year anel a half after notice legally served upon them, it contains the averment simply that the judgment ‘"has been fully paid,” &e., referring to the records of that court, but without averring the time of payment. If It were noci'ssary in support of the judgment, we would, perhaps, be authorized to presume that the court inspected (he record thus brought to its notice by the; answer, and found that it did not support the defense;. But it is sufficient to sustain the judgment of the court upon the sufficiency of the answer that it does not state when the payment was made.

The; remaining error assigned is to the rendition of judgment iina.1 upon sustaining the exceptions to the answer. Had the defendants asked leave to amend, that right must have bee.u allowed them upon the same; principle on which a plaintiff is allowed to amend after exceptions sustained to his petition. (Jennings v. Moss, 4 Tex. R., 452.) But the. obvious answer to this assignment of error is that the defendants did not ask leave or indicate a willingness to amend. It was therefore proper to rentier a judgment final against them. (Bell v. Morehead, 3 A. K. Marsh. R., 158.) The judgment is affirmed.

Judgment affirmed.  