In the absence of an agreement between the parties, that the one debt should he applied to the discharge of the other, we can see no principle of law upon which the Court can make the application, to the prejudice of thi/rd persons. The question is narrowed to this: At the time Chambers executed the deed of trust to Fraley, did McOonnaughey have any lien or any equity which attached to this debt, so as to make it against conscience for Chambers to appropriate the debt to the benefit of other creditors, to the exclusion of McOonnaughey ?

The case is simply this : A holds a note on B ; B holds a note on A for about the same amount; A sues B at common law, B had no right to plead the debt to Mm in bar of the action, but by statute he is allowed to do so. Still, he is under no obligation to plead the set-off; suppose he does not elect to do it, and assigns by deed of trust this debt and other debts, to pay other creditors, what principle of law forbids it? We know of none. This is putting .'the.' case as if the set-off might have been pleaded, if the defendant had elected to do so, and the case is certamly no stronger where, as here, it could not have been used as a legal set-off.

It short, although it seems singular that two debts should he allowed to stand without some understanding that the one should he applied to the other, still, as there was no such understanding, each party had the control of his own *286 •debt, and neither had a lien, either in law or equity, which prevented the other from making an assignment for an honest purpose, in the exercise of the right to prefer creditors.

There is error.

This will be certified.

Per Curiam. . Reversed.