The opinion of the court was delivered, by

John G. Given, the defendant in the judgment of Carr & Co., held a bond and mortgage of $800, given to him in the purchase of property by Andrew Beck and James M. Palmer, with William Palmer as their surety, which were attached on the 26th of July 1859.

The bond being several as well as joint, William Palmer set up as a defence, that at the time of the service of the attachment Given was indebted to him upon an exchange of land as follows : In 1857 Palmer exchanged with Given a tract of land in Cambria, county, called the Welsh tract, for lands in Missouri owned by Given, agreeing to pay a balance of purchase-money owed by Given upon it, and Given agreeing to pay an equal amount to judgments of Lloyd & Co. against Palmer, which were liens on the Welsh tract. Palmer paid the debt in Missouri, but Given failed to pay this amount to Lloyd & Co. On the 28th of March 1859 Palmer and Given settled, and the latter fell in debt to the former $740. Given, in .order to pay this sum, sold the Welsh tract to William K. Carr, and bound him in the articles to pay that sum to Lloyd & Co.’s judgment against Palmer; Given agreeing to have the title to Carr made by Palmer in sixty days. Carr not having paid this sum of $740 to Lloyd & Co.’s judgment, it is clear that when the attachment was served on William Palmer, on the 26th of July 1859, he stood as the creditor of John G. Given in that sum. It is argued, however, that because Palmer, on the 9th of September 1859, conveyed the Welsh tract to Carr, he is to be presumed to have assented to the payment stipulated by Carr to be made to Lloyd & Co., and therefore Given’s debt to Palmer is suspended until the insolvency of Carr is shown. I do not find this deed in the evidence, but admitting 'it, the inference drawn is incorrect.

Given owed Palmer the $740, and by his own contract was to have paid the money to Lloyd & Co.’s judgment in relief of the Welsh tract. On the day of his settlement with Palmer, he manifestly sold to Carr, in order to raise the means of. payment. Carr’s covenant was to Given, not to Palmer, and at least made *274him liable to the former and not to the latter. Palmer’s contract was to convey the Welsh tract to Given. Now it may be entirely true that Palmer was willing to comply with his covenant to Given by making the deed over to Carr, but it does not follow that he thereby released Given, his only debtor. He took no obligation in any form from Carr, and gave no release except to Given, while if Carr even did agree to pay directly to Palmer, he violated his assumption by taking a rule in the Lloyd & Co. cases to prevent them from selling the Welsh tract under their liens until they had exhausted all the other property of Palmer, thus throwing the payment from his own shoulders upon those of Palmer. Clearly, then, while Given had tried to provide means for the payment of his debt to Palmer, he had not paid it, and Palmer had done nothing to release him. But another ground is set up as a partial defence. It seems that at the time of the sale to Carr, there was a judgment against Given in favour of Nathan Whiting eí al., a lien on the premises sold. This judgment was levied on the Welsh tract, which was bought in at sheriff’s sale by William K. Carr, on the 6th day of June 1860, for $10. Carr in the mean time, however, had arranged with Whiting’s attorney for the purchase of the judgment, and it was accordingly transferred to him on the record on the 17th September 1860. Carr, on the trial, claimed to reduce tl\e debt of $740, from Given to Palmer, by the amount of the Whiting judgment. But this is manifestly incorrect. Had the judgment been against Palmer instead of Given, it would then have been a defence between Given and Palmer, but being against Given, while it would be a defence to Carr in a suit by Given for the purchase-money, it was not a liability for which Palmer was answerable to Given. Given therefore could not set it up against Palmer. And even had Palmer conveyed to Carr with warranty of title, however liable he might be in the covenant to Carr, Given could not set off his own debt to Whiting against his debt to Palmer.

The error of the argument consists in converting Carr’s defence to Given’s claim, into a defence by Given against the claim of Palmer. The claim on the note of $216.50, at five months, now set up, is an after-thought, and cannot be permitted to disturb the judgment.

The plaintiff in the attachment gave in evidence no other debt to the defendant by the garnishee than the bond of $800 and mortgage. The article of agreement between Given and Beck and James M. Palmer, and Given’s receipt for the note of $215.50 at five months, payable at the office of W. M. Lloyd & Co., were given in evidence by the garnishees in explanation of the transactions of Given. But no note of $215.50 was produced or accounted for, or shown to belong to Given at the time of the attachment. The strong presumption is from the place of payment that the note was at once transferred to Lloyd & Co. upon *275the claim, while in the trial no claim appears to have been made upon it. It is not alluded to in the plaintiffs’ points in the charge of the court, or in the assignment of errors. The only question raised on the trial, so far as the record shows, appears ,to have referred to the claim of $800 on the bond, and the set-off to it of $740. The court in their charge say it is true that if William K. Carr failed to pay the $740, leaving Palmer still liable to Lloyd & Co., then there was nothing due from Palmer to Given, or in the hands of Palmer belonging to Given liable to attachment. But this has manifest reference to the $800 bond debt, which was alone before the mind of the judge, and it would be doing great injustice to him to apply it now to the $215.50 note, of which the plaintiff had given no evidence, and on which they then set up no claim. It is now too late to ask us to remedy the omission.

There was no error in the admission of William K. Carr as a witness for Palmer. He had no interest in the controversy between Given and Palmer. The fact of his -subsequent purchase of the land and agreement to pay the $740 created no interest on Palmer’s side. The effect of his testimony was to fix the debt upon Given and thereby to make his.covenant to pay it to Lloyd & Co. more effectual. If he had any sensible interest it was against Palmer. Nor did the throwing of that debt upon Given discharge the land Carr had purchased, from Lloyd & Co.’s judgments. Lloyd & Co. are not affected by the controversy between Given and Palmer, no matter which wins. Palmer’s debt to Lloyd & Co. must be paid, and stands as an encumbrance on his land. If fixing the debt of $740 on Given could change Lloyd & Co.’s relation to the case and discharge the lien of their judgment, then Carr would have an interest; but as he stands related to the case, having assumed to Given to pay this debt to Lloyd & Co., his testimony in favour of Palmer establishing the debt, certainly is unfavourable to his own discharge from his covenant to pay it to Lloyd & Go.

Nor was'there any error in receiving in evidence Given’s note of $660., given at Glasgow, Missouri, September 18th 1856, payable January 1st 1858, with the receipts for payment endorsed. It had been preceded by the testimony of the settlement on the 28th March 1859, and the balance of $740 found due by Given to Palmer, the witness stating that he thought the amount Palmer was to pay for Given in Missouri had been paid at that time. In connection, therefore, with the settlement and balance found due, and this recollection of the witness, the possession of the note with the endorsements (the signatures not being questioned), was a circumstance to go to the jury, very slight, it is true, but yet not so wholly irrelevant as to make its admission a cause of reversal.

Finding no error in the record, the judgment is affirmed.