¶1 We think his Honor was right in sustaining the 5th exception, and that makes it unnecessary that we should consider the other exceptions, because the 5th exception fixes the defendant with sufficient funds to satisfy the plaintiff’s demand.
¶2 In regard to the 5th exception, the facts are that the defendant claims to retain the amount of a note due him by his intestate as surety for one Wilson, who was alleged to be insolvent. But then the defendant claims that his intestate was indebted to said Wilson in a sum larger than the note, and that he paid Wilson out of the funds of the estate, and took a credit therefor. And the question arises — Why did the 'defendant pay Wilson when Wilson owed him the note aforesaid ? Why did 'he not set off the note he had on Wilson instead of paying Wilson his claim against the intestate, and then leaving the ■.note to fall upon Wilson’s surety, who was the defendant’s *447 intestate? No reason or explanation is given, and we think the defendant ought not to be allowed to retain the amount ■out of the estate of the intestate.
¶3 Per Curiam.
¶4 Judgment affirmed, and judgment herefor plaintiff,