There is no evidence to sustain the averment of the complaint, and the finding of the Court, that Cook paid to Ellmore or his personal representatives the amount of the note given by Ellmore to Van Horn. The proof at most only shows that there is a balance due from the estate of Ellmore to McKinney, equal to or more than the amount which the estate has paid for the benefit of McKinney & Townsend. McKinney & Townsend are not parties to this action, nor is there any case presented by the complaint which would authorize Cook to avail himself of the counter claim of McKinney against the estate of Elhnore as a payment in behalf of McKinney & Townsend.

The judgment must be reversed and cause remanded for a new trial.