In determining the question of multifariousness, the court can look only to the bill, including the prayer for relief. It is not permissible to consider the answer or proofs. — See Halstead v. Shepherd, 23 Ala. 558; Carpenter v. Hall, 18 Ala. 439. Two very strong cases of unequal interest in the several defendants, and yet the bills in each case held not to be multifarious, are Horton v. Sledge, 29 Ala. 478; Flemming v. Gilmer, 35 Ala. 62.
Speaking of multifariousness, Chief Justice Collier said : “ It is indeed difficult, if not impossible, to reconcile all the decisions on this subject, or to educe from them general rules by which to test the objection.” And it is further said, “the court will be governed by (rules) which seem best founded in general convenience, and will best promote the due administration of justice, without multiplying unnecessary litigation oh the one hand, or drawing suitors into needless or oppressive expenses on the other.” — Kennedy v. Kennedy, 2 Ala. pp. 609 to 611.
The bill in this case as amended, charges that by collusion and fraudulent combination, Luke Matthews and Bradley, Wilson & Co., surrendered up without payment — the latter to the former — the bill of exchange which is the foundation of this suit. The effect of this surrender thus made, if true, would be to destroy, or place beyond the reach and control of complainant, the evidence of his claim against Luke Matthews. There are some circumstances, under which chancery will entertain jurisdiction to recover upon a lost bill of exchange. — See 1 Story’s Eq. Jur. §§ 85, 86. Possibly the fraud and collusion charged in this case would give a joint right of recovery in chancery against Luke Matthews and Bradley, Wilson & Co. — See May v. Nabors, 6 Ala. 24; 2 Perry on Trusts, § 828. But we deem, it unnecessary to decide this question.
There can be no doubt that the present bill sets forth a good ground for equitable relief against Luke Matthews. It is the plain case of a vendor, seeking to enforce his lien on the land for unpaid purchase money.. — See 2 Brick. Dig. 515; Bunkley v. Lynch, 47 Ala. 210. It is equally true that by the fraudulent combination and collusion between Luke Matthews and Bradley, Wilson & Co., charged in the bill as amended, they either fixed on themselves a joint liability to *684complainant which could he enforced in equity, or they did not. If they fixed on themselves such joint liability, then the present bill against them was well filed; and joining them as defendants, does not render the bill multifarious. The rule against multifariousness does not require that each defendant shall have the same measure of interest. The case against one defendant may be so entire as to be incapable of prosecution in several suits; and some other defendant may be a proper party to only a part of the case. — See McCartney v. Calhoun, 11 Ala. 110; Mobile & Cedar Point R. R. v. Talman, 15 Ala. 472; Pl. & Mer. Bank v. Walker, 7 Ala. 927; Jouzan v. Toulmin, 9 Ala. 662: Holman v. Bank of Norfolk, 12 Ala. 369.
If there be no joint equitable liability against Luke Matthews and Bradley, "Wilson & Co., then the liability of the latter to the complainant is a pure, simple legal demand, which cannot be enforced in equity. The rule is well and sensibly settled, that if a bill sets forth one ground of equitable relief, and also contains a statement which would uphold another claim, recoverable only in a common law action, although wholly disconnected with the equitable demand, such bill is not multifarious, even though it contains a prayer for relief as to each claim. — Carpenter v. Hall, 18 Ala. 439 ; Varick v. Smith, 5 Paige 137, 160.
The demurrer for multifariousness should have been overruled ; and as no other ground of demurrer has been contended for in this court, we will consider no other.
Bradley, Wilson & Co. were the factors alike of W. W. Matthews and Luke Matthews — the last two being brothers. The proof shows they collected and disbursed for each, considerable sums of money, and that, at times, each had large deposit accounts with Bradley, Wilson & Co. The bill of exchange, which is the foundation of the present suit, was left by intestate of complainant with them for collection. Another bill, part purchase of the same land, also left with them had been collected by them, the proceeds passed to the credit of W. W. Matthews on their books, and had been paid out to him in sums and in merchandise, as the same was called for; In fact, much the larger part of this first bill was drawn out by W. W. Matthews in cash and in merchandise, before it matured. The very day on which the first bill fell due, the amount of it was placed to the credit of W. W. Matthews, on the books of Bradley, Wilson & Co., and produced a balance to his credit of only a trifle under two thousand dollars. Near twelve thousand dollars of its amount had been previously drawn out by W.'W. Matthews.
Soon after the collection of this first bill, an account cur*685rent was furnished by Bradley, Wilson & Co., to W. W. Matthews, in which the transactions above sketched were set forth in an itemized account; and there is no evidence that he expressed any dissatisfaction therewith. On the contrary, the bill expressly avers that the first of said bills had been paid. The payment was made in the manner above set forth, and not otherwise.
Taking up the transaction of Bradley, Wilson & Co., with Luke Matthews, we find that he also kept a running account with Bradley, Wilson & Co. When the first draft matured, there stood to his credit, on their books, but little more than half the amount of it. Still, the amount of that draft was debited to him on their books, as so much money paid for him, and credited on their books to W. W. Matthews, as so much money collected for him. Within two or three months afterwards, further credits were entered on the books to . Luke Matthews, which swelled his excess of credit to over thirty thousand dollars, after debiting him with the amount of the first draft of $13,867 20. All these receipts by Bradley, Wilson & Co., were older in date than any issue of Confederate currency; and, hence, must have been made in money then considered lawful.
Enough of this balance remained on the books of Bradley, Wilson & Co., in favor of Luke Matthews, to leave due him January 1st, 1862, and up to the maturity of the second draft, over twenty-one thousand dollars. When the second draft matured — January 13th, 1862 — Bradley, Wilson & Co., debited Luke Matthews with the amount of that draft, $ 14,894 20, and credited W. W. Matthews with the same amount. They had previously remitted to him, at his request two thousand dollars, in anticipation of this collection. A copy of W. W. Matthews’ account with Bradley, Wilson & Co., containing this credit of $14,894 20 was forwarded to him; and we are not informed by the evidence that he ever objected to it.
As some evidence that W. W. Matthews did not expect Bradley, Wilson & Co. to collect the second draft and remit it to him in bulk, as in case of an ordinary collection by a mere collector, we may refer to his correspondence found in the record. On December 24th, 1861, W. W. Matthews wrote Bradley, Wilson & Co., as follows : “ When my bill matures, you will please send me two thousand dollars, and hold on to the balance for further orders.” This money was sent before the draft matured.
Again, he wrote January 11th, 1862: “If you wish to keep a part of my debt,'you can keep four thousand dollars for twelve months, with ten per cent, interest.”
*686"We do not learn from the record that W. W. Matthews ever afterwards made any claim on Luke Matthews on account of said draft. In October, 1865, he wrote Mui a long letter, partly on business matters, and made no allusion to anything due from Luke to him. On the other hand, he wrote to Bradley, Wilson & Co., of date February 28th, 1862: “ If you have accepted from brother Luke Confederate money to pay me, you done so on your own responsibility.”
W. W. Matthews died between October, 1865, and the inception of these proceedings, October, 1869. We are not informed by the record that Luke Matthews, during the life of his brother, was ever notified by any one that the settlement of the second draft, through Bradley, Wilson & Co., was not satisfactory to W. W. Matthews.
Much stress is laid on the fact that Bradley, Wilson & Co. wrote W. W. Matthews that they could remit only in Confederate money, unless he would consent to pay a high premium for coin, and that he refused each proposition. Also, that Luke Matthews wrote him that arrangements had been made for payment of the draft in Confederate money. It is not true that Bradley, Wilson & Co. collected in Confederate money. The receipt by them was long anterior to the first issue of that circulating medium, and hence must have been in some other currency. That the currency of the country had so entirely changed, in that Confederate currency had become the only circulating medium in which payment could then be made without a great sacrifice, was, perhaps, unquestioned. We suppose this entire change in currency caused each of these parties to propose payment in the then only circulating medium of the country. Whether this is so or not, we are satisfied that at the maturity of the draft, Bradley, Wilson & Co. had of the funds of Luke Matthews more than enough to meet it; that it was not received in Confederate money; that they were authorized and instructed to apply it to the payment of this draft; and that they did so apply it in the ordinary course of dealings by these parties with their house. We have not been able to find, in this transaction, any evidence of fraudulent combination or collusion between Bradley, Wilson & Co. and Luke Matthews, and we hold that any relief claimed in this bill, based on that ground, must fail.
There is a foot-note to the original bill, dispensing with sworn answer; and unsworn answers to it were put in. The amended bill has no foot-note, and there is no direction found in the' record relieving the defendants from making oath to their answers to that. The answers were put in without oath of their truth; but no objection to them on this *687account was taken in the court below. "Whether, under these circumstances, it was the duty of the defendants to make affidavit of the truth of the answers to the amended bill, we will not inquire. If such was the case, it was waived by the failure of complainant to object to it in the court below. It may be stated, also, in this connection, that the omission of a foot-note to the amended bill rendered it imperfect. But no objection has been urged on either of these grounds; and we will treat the answers as rightly put in without oath.
Answer, not under oath, is mere pleading — not evidence. B.OV. Code, § 3328. No exception can be filed to such answer for insufficiency. — Rule'of Practice No. 34. We do not think the same strictness in pleading is required in answers not sworn to, as in those which, under the rule, are required to be sworn to. We think the general denials in the answers to the amended bill are sufficient to put them in issue. There is, indeed, no averment, as fact, that Luke Matthews promised io pay in gold. The averment is only of a legal conclusion, deduced from the promise to pay in dollars, and the legal consequences resulting from the employment of that word.
Putting ourselves, as near as we can, in the attitude the parties occupied in January, 1862, we think the conduct of Luke Matthews was natural, and entirely free from blame. He prudently provided funds, in the hands of the drawee, to meet the draft. That drawee was the trusted friend and agent alike of W. W. Matthews and of himself. The funds were applied to the extinguishment of the draft, and, so far as we are informed, he was not advised that there was any dissatisfaction. No notice was given to him, that he might withdraw his funds from Bradley, "Wilson & Co. — See Smith v. Rowland, 18 Ala. 665. The latter firm were equally the trusted friends and agents of W. W. Matthews. This is confirmed, if confirmation of what is stated above be necessary, by the fact that they were the drawees of the draft, and as such the parties to be primarily looked to for its payment; yet it was left with them by W. W. Matthews to be collected, and the proceeds remitted to him. "We think that, in this transaction, Bradley, Wilson & Co. stood more in the relation of a common banker between the brothers than as an agent for Luke to pay, or for W. W. to collect.
In the case of Eyles v. Ellis, 4 Bing. 112, the principle is thus declared: “The plaintiff, in October, authorized defendant to pay in at certain bankers money due from the defendant. Owing to a mistake, it was not then paid; but defendant, who kept an account with the same banker, transferred the sum to the plaintiff’s credit, on Friday, the 9th of *688December. Tbe plaintiff, being at a distance, did not receive notice of tbis transfer till tbe Sunday following, and on Saturday tbe bankers failed.” Held a good payment.
A similar principle was declared in tbe case of Stewart v. Aberdeen, 4 Mees. & Wels. 211. See, also, Anderson v. Robinson, 3 Camp. 199; see, also, opinion of Spencer, Senator, in Stone v. Hayes, 3 Denio, on page 584, where be states tbis same principle. Tbis, though, a dissenting opinion, does not appear to have been disputed on tbis point.
If, when tbe money on tbis draft fell due, Lqke Matthews bad received of Bradley, Wilson & Co., of tbe moneys in their bands belonging to him, a sum sufficient to meet tbis draft, and bad immediately repaid it to Bradley, Wilson & Co. on tbe draft, no one will dispute that,tbe payment would have been good. We can perceive no material difference between tbe supposed case and tbe one in band.
We think tbe complainant has no right of recovery against Luke Matthews — has no equitable demand against Bradley, Wilson & Co. — and tbe decree of tbe chancellor dismissing tbe bill is affirmed.
Chief Justice Brickell, having been of counsel, not sitting.