¶1This ease was tried alone on pleas of payment. It is nowhere denied that the paper sued on represented, at one time, a bona fide, subsisting debt from Gamble to Pruitt, the payee. This note, the paper sued on, was traded and transferred to Kelton, who continued its owner for some time. The precise shape the defense assumed is as follows: Defendant, Gamble, claimed, and testified to its truth, that while Kelton held his note, he, Kelton, became indebted to him, Gamble, in several amounts, the aggregate of which was equal to the amount of the note sued on, and that by mutual agreement between him and Kelton, said cross demands were to stand and be treated as payments on the note. Kelton denied this, and testified, not only that no such agreement was made, but that all he owed Gamble had been credited on the note. There were two credits indorsed oh the note, amounting to forty-six dollars. Cross demands are not payments, unless there is a mutual agreement to that effect. — Wharton v. King, 69 Ala. 365.
¶2Against the allowance of this alleged payment, plaintiff proved by the defendant himself, and by an exemplification of the proceedings before the justice of the peace, that Gamble sued Kelton on the alleged items of payment which he claims in this case as an indebtedness to him, and recovered judgment for their amount. This, it is claimed, precludes the defendant from setting up said demands as payment in this suit. We think this contention sound. Those items, or claims, could not be a payment on Gamble’s note held by Kelton, and, at the same time, remain an indebtedness from Kelton to him, that would support an independent action against the former. The two categories are incompatible with each other. And Gamble, having elected to treat the claim as an independent cause of action, and having brought suit and recovered judgment upon it as such, has estopped himself from setting it up as payment. Hill v. Huckabee, 70 Ala. 183; Caldwell v. Smith, 77 Ala. 157. The first charge asked by plaintiff asserts the law correctly, and should have been given.
¶3*427Defendant’s counsel asked the witness Wharton, tbe justice of the peace, what he had advised Gamble in reference to bringing suit on the account; and, against the objection and exception of plaintiff, he was permitted to answer that he had advised that suit be brought. This testimony was illegal, and could in no sense impair the force of Gamble’s election to sue the claim to judgment against Kelton. It was the act which determined the election, and worked the estoppel, and not the motive or advice which brought it about.
¶4Beversed and remanded.