author: *Birchard, J.

text:
    *Robert McCurdy and others v. William Legally and others, Administrators of Henry Terry
    Where proceedings have been appealed from the commissioner of insolvency, appointed under section 201 of the “ act to provide for the settlement of the estates of deceased persons,” to the court of common pleas, the Supreme Court can not take jurisdiction as an appellate tribunal.
    A cause so appealed to the common pleas is not a proceeding in chancery coming within the provisions of section 52 of the act directing the mode of proceedings in chancery.
    This case was reserved for decision in this court in Huron county.
    It appears from the papers, files, etc., that at the May term of the Huron common pleas, a. d. 1839, the complainants in the suit obtained a decree for the foreclosure of a mortgage against Henry W. JenkiDS, in the sum of $10,636.35 debt, with costs. That Jenkins appealed that cause to the Supreme Court, by filing the appeal bond set out in the bill, in the penal-sum of $22,000, with John B. Wilbor, Josiah Tracy, and Henry Terry, as sureties. That a decree was obtained in the Supreme Court, at its August term, a. d. 1840, finding due to the complainants $4,972.35, and ordering a sale of the mortgaged premises unless the decree should be paid within the time limited. That the mortgaged premises were sold, under a decretal order issued upon the decree, July 12, 1842, for $3,240. That on May 13, 1843, the complainants procured a writ of fieri facias to be issued upon the decree, “ to make the balance due,” which was returned, “ no goods,” etc. That Jenkins, at that time, was insolvent. That at the June term of the Huron common pleas, A. D. 1843, the complainants commenced suit on the appeal bond, against Jenkins, Wilbor, Tracy, and Terry, upon all of whom process was served; and that at the following October term, judgment for the penalty of the bond was obtained against Jenkins, Wilbor, *and Tracy only, with leave to take out execution for $2,679.60 and costs, Terry having deceased prior to the sitting of the court. That Wilbor and Tracy have paid about $1,200 on the judgment, and are unable to pay more. That Terry died in September, 1843, and the defendants, Legally, and Roxana Terry, are his administrators. That in the month of January, 1845, complainants presented their aforesaid claim to said administrators for allowance and payment; and on January 29, 1845, presented and proved it before the commissioners of insolvency on said Terry’s estate, and the same was disallowed by said commissioners, from whose decision complainants appealed. The substance and prayer of the bill are, that the defendants may be decreed to pay the claim out of the assets of the estate, and for general relief.
    The defendants, in the common pleas, demurred generally to the bill, and their demurrer was sustained, and the complainants then appealed to the Supreme Court.
    At the August term, 1845, the case was heard and dismissed, on the defendant’s motion to dismiss the appeal; alleging that the court of common pleas had not original jurisdiction, and that the suit relates to matters of probate and intestacy, and as such, was not within the jurisdiction-of the court. A petition for rehearing on this order was then presented and reserved, together with this whole case, for decision in this court.

      Andrews & Lane, for plaintiffs:
    The case presents two questions: 1. Whether the suit be appealable ; 2. Upon the merits.
    1. Is the suit appealable? This depends upon a question of practice, arising under our present system of administration.
    The plaintiff obtained a decree for the foreclosure of a mortgage against H. W. Jenkins, who appealed to the Supreme *Court. The appeal bond was given by Jenkins, Tracy, Wilbor, and Terry. Terry died. The plaintiff recovered a judgment on the bond against Jenkins, Tracy, and Wilbor, who are all insolvent. The plaintiff’s remedy against the estate of Terry is plain and full in equity. It is lost at law, unless the statute gives a scire facias.

    In the settlement of Terry’s estate, commissioners were appointed, under section 201 of the statute, page 376. This claim was presented to them and rejected. Plaintiff appealed to the common pleas. Sec. 207. The common pleas required that the claim should be presented in the juridical form, by pleadings, and the plaintiff filed his bill in chancery. The common pleas, on demurrer, dismissed the bill, from which dismissal the plaintiff has appealed, and the defendant moves to dismiss.
    The question then is, in what manner shall this court, as the court of the last resort, exercise its revising jurisdiction over the common pleas, admitting or rejecting a demand against a decedent’s estate, which may be pursued in chancery? That this supei’visory power of the Supreme Court subsists in some form, is plain; for it is reckoned that the whole property of the country passes through the course of administration as often in once in thirty years; and there is not the slightest intimation in the statutes, and it never could have been intended, that the common pleas should hold exclusive jurisdiction over this lai’ge department of litigation, or that the Supreme Court should abandon its duty, as the ultimate tribunal of correcting errors, and preserving uniform rules of justice. The mode of interposition, in all questions on the law side of the court, is .plain; the common pleas very properly require the claim to assume a juridical form, the form of a suit; the case is regularly tried by jury, and is followed by a regular judgment, which may be reviewed by the ordinary writ of error, and the power of the superior tribunal is thus preserved perfect and effectual, in the ordinary judicial forms. But a writ of error will not reach cases in chancery.

      *Will it be said that we must bring a bill of review?
    We admit we may; but how crooked this remedy is. We may file our bill in the same court, and then we may appeal that bill of review which is an original suit, and present the question thus ; but must we? Is it best to prescribe a remedy which can only be reached “per ambages” (“by hook-em-snivey ”), with much toil and expense, instead of the direct and simple course of appeal?
    But, say the defendants, the common pleas have the case by appeal, which is governed by the same rules as appeals from justices, and admits no second appeal. The statute will bear, but it does not require, such a construction. It admits the following: That suits at law, under $100, are reviewable by writ of error only; but that all the suits of sufficient magnitude to admit original jurisdiction in the common pleas, are to be regulated by the rules governing such suits. Or, it admits a review in all cases of law, by error, and all cases in chancery, by appeal or review-We submit to the court which is the preferable course, and only add, that if we are driven to a bill of review, and an appeal of that, it is a path unnecessarily crooked.
    2. If the court sustain this appeal, our rights qn the merits appear to us plain.
    Tn May, 1839, plaintiffs procured their decree of foreclosure. Jenkins, Tracy, Wilbor, and Terry signed the appeal bond, whose condition was “to pay the full amount of condemnation money,” etc., “ in case decree be entered herein in favor of appellees.”
    The Supreme Court, after confirming the master’s report, “ decree that the defendant, within thirty days next,” etc., “pay the aforesaid sum'of $4,972.35, being the amount,” etc., “with costs of suit,” and in default, a decretal order issue, etc., and that special mandate issue, to carry this decree into execution.
    In 1842, premises sold under decretal order.
    1843, fi. fa. against Jenkins from C. P., to make unpaid balance.
    *1843, October. Plaintiff recovered judgment on.the appeal bond, against Jenkins, Tracy, and Wilbor, for unpaid balance, Terry being dead.
    Jenkins, Tracy, and Wilbor are insolvent.
    TJpon these facts, we assert, we have a lawful claim against Terry’s estate for the unpaid balance. The remedy by bill is entirely open and ample. A creditor may pursue his joint debtor’s ostate in equity when the surviving debtor is insolvent, Stat. 355, sec. 72; Story’s Eq. 676, sec. 1.
    This claim must be presented to the commissioners of Terry’s estate, it having been represented insolvent; all other remedies are cut off. Stat. 380, sec. 224.
    The main defense is, that the decree creates no debt; that it is in rem only. If so, the property of Jenkins only is bound.
    But it is not so. It not only finds and establishes a debt against Jenkins, the original debtor, but it condemns him to pay it with costs. It is, in terms, a decree to pay the debt and costs. The same words which give us the costs, give us the debt; the same execution can collect both. If we can not make the debt, we can not make the costs; the obligors of the bond did not bind themselves to pay the costs, unless they are bound to pay the debt.
    But this whole matter is explicitly settled by 13 Ohio, 422. That case decides that where a decree only finds a debt due, it creates no new or personal obligation ; but a decree containing an order to pay creates a debt, and authorizes an execution to collect it. Of course, if Jenkins was condemned to pay and subjected to execution to collect, his bail are, liable,
    Boalt & Wooster, for defendants:

      Motion to Dismiss the Appeal. — The first ground for the dismissal of the appeal, as stated in the motion, is, that this is not a cause for which the common pleas had original *jurisdietion; and the second, that it is, as presented to the court, a matter of probate jurisdiction, and as such, appertains exclusively to the common pleas.
    1. The original papers filed in this cause disclose the facts, that the estate of Henry Terry was insolvent; that commissioners of-insolvency were appointed under the statute to examine, audit, and allow claims against the estate; that this claim, now sought to be enforced, was presented to the commissioners for allowance by them, and rejected, and an appeal taken by the complainants to the common pleas, and afterward appealed by them to this court. Vide original transcript, bond to the common pleas, and certificate of the clerk;
    “The Supreme Court shall have appellate jurisdiction from the court of common pleas, in all cases in which the court of common pleas has original jurisdiction.” See act to organize judicial courts, Swan’s Stat. 222, sec. 2.
    It was insisted on the circuit that the right to an appeal in this case is secured to the complainants under the statute “ directing the mode of proceeding in chancery.” Swan’s Stat. 713, sec. 52. It is there enacted that “any person may appeal to the Supreme Court from any final sentence or decree pronounced and made in any cause or suit in chancery, in the court of common pleas, on giving notice,” etc, Admitting, for the sake of argument, that there is an apparent or substantial inconsistency between the provisions of the statute last cited, and section 2 of the act “organizing the judicial courts” — that the one, on a just, construction of its terms, contemplates the right to appeal in all cases in chancery, and that the other limits the right to that class of cases in which the common pleas has original jurisdiction— which of the two must yield? The act “'organizing the judicial courts ” holds much the same relation to the acts regulating their practice, or mode of proceeding, that the .constitution does to the former act. The former act is the fundamental or organic law of the latter. The one creates the courts, grants and defines their powers, and the other ^regulates and directs the mode of carrying those powers into effect. If, then, this is so, in case of inconsistency in the two acts, especially as to a question of power, is it not obvious that the subsidiary should yield to the primary?
    But again, it was argued, on the circuit, that the commissioners of insolvency do not constitute that kind of tribunal that should be regarded as having jurisdiction of the matters appertaining to their appointment in such sense as to make this class of cases an exception to the original jurisdiction of the common pleas, as contemplated in the act organizing judicial courts. To this objection, we answer, the constitution of Ohio provides that “the court of common pleas of each county shall have jurisdiction of all probate and testamentary matters, granting administration,” etc. Swan’s Stat. 29, art. 3, sec. 5.
    By “ probate and testamentary matters ” are, of course, intended such matters as by the English law comb before the ecclesiastical courts, and in our sister states, before the courts of probate, orphans’ courts, etc.; matters that elsewhere constitute a separate and independent branch of jurisprudence. It is sufficient to remark here that these are not matters of “common law,” or “ in chancery,” in respect to which an appellate jurisdiction is contemplated under the constitution.
    The fact that in one section of the constitution an appellate jurisdiction at “common law and in chancery” is given to the Supreme Court, and that in another section, original jurisdiction, without appellate powers, is given to the common pleas in “probate and testamentary matters,” is not only evidence that in respect to the latter, appellate powers were no1¿ contemplated, but is also evidence that, although matters of probate, etc., in common with chancery and common-law powers, were vested in the common pleas, the terms “common law” and “chancery” were not designed to embrace or to be confounded with “ probate and testamentary matters.”
    The acts “ organizing the judicial courts,” and the “ act to provide for the settlement of estates,” are in strict accordance *with this view of the constitution. The former act provides that the common pleas “ shall have power to take the proof of wills, grant letters testamentary thereon, and to grant letters of administration upon intestate estates, and to hear and determine all causes of a probate and testamentary nature,” p. 222, sec. 4. The right of appeal to the Supremo Court is nowhere mentioned in either of the above acts, in reference to this class of cases; and as “ the practice of removing causes by appeal, for a second trial, is created by statutory provision,” it follows that when the statute is silent the right fails. In the matter of Chapman’s will, 6 Ohio, 148.
    In Street v. Francis, the court say: “ It [the right of appeal] has never been considered as extended to cases in which a summary jurisdiction has been granted to the court of common pleas by particular statutes. In such cases we never sustain an appeal, unless it has been allowed by the statute that creates the jurisdiction.” 3 Ohio, 277. See also Hoy v. Hites, 11 Ohio, 254; Doane v. Fleming, Wright, 158; Mygatt v. Ingham, Wright, 176.
    But it is claimed that this suit is a proceeding in chancery, and for that reason can not come within the rule denying appeals to the Supreme Court in probate matters. It is true, that it has now assumed the form of a bill in chancery, but its specific or distinctive nature as a chancery or probate proceeding, is to be determined by the character impressed upon it at its inception. Had it been presented in its present shape to the commissioners of insolvency, with all the formalities of a bill in chancery, it would, in our view, have made no difference as to its character. The statute for the settlement of insolvent estates is silent as to the form in which the claims of creditors shall be presented to the commissioners for allowance, We can see, therefore, no objection to the original evidence of the indebtedness being so presented without further formality, or to a bill of particulars of it, as before magistrates, orto their being presented in the form of declarations at law, or bills in chancery in the proper cases. The proof must be the same, whatever the mode.
    *So much for the motion to dismiss.
    In support of the demurrer, we submit the following considerations :
    1. That the bill is insufficient for want of parties. It will be readily seen, upon an inspection of the bill, that Jenkins, Wilbor, and Tracy are necessary parties to this proceeding, and that a decree can not be made, properly and equitably disposing of the matters set forth, unless they shall be made parties to the proceedings. Of the propriety and necessity of their being so'made parties, the complainants were fully aware at the time of filing their bill, and accordingly have named them all as defendants, but have hitherto neglected to issue process against them, or in any other mode to affect their appearance to the suit.
    2. That the complainants in the case made in their bill, men with the proper parties, have no remedy either at law or in chancery.

    The case of Hamilton v. Talmadge, 13 Ohio, 427, is in point; though that case, in our view, was a stronger one for the complainants than this is, for the reason that, in the former,personal property, as well as real estate, were ordered by the decree to be sold and the personalty so condemned, could not be found by the officer holding the process for its sale; which fact appears upon the return made by him. In both cases, that of Hamilton v. Talmadge et al., as well as that of McCurdy & Dart v. Jenkins, a writ oí fieri facias issued after the sale of the real estate on thé decretal order. Butin the ease of Hamilton v. Talmadge et al.., the fieri facias rightly issued, it being the proper process for the sale of the personal property condemned. On the contrary, in McCurdy & Dart V. Jenkins, the fieri facias was issued irregularly and tortiously,. without any authority for it in the original decree, or by any sub-. sequent order of court, and would have been at once set aside on motion. See also Buell v. Cross, 4 Ohio, 327.
    3. That if any cause; of action exists, the remedy of the complainants is at law, and not in chancery.

    *In a case like the present, where a surety died pending a suit at law against him, or after judgment, the creditor formerly had no remedy against the personal representatives of the surety, either at common law or in chancery. The case of the Zanesville Manuf. Co. v. Granger, 7 Ohio, 165, pt. 1, covers the entire ground of this objection. The points decided in that case are stated in Wilcox’s Dig. Ohio R. 451, as follows: “At common law, it seems that if one of several judgment debtors died, there was no way to make the representatives of the deceased a party to the judgment. And if the deceased were a surety, a court of equity could not supply the defect in the law. But, under our statute, a scire facias lies jointly against the representatives of the deceased and the survivors; and that, too, though the deceased was a surety." It will be seen, by-reference to the •case itself, that Judge Collet, in giving the decision of the court, ■applies its doctrines, as well to suits pending, as to judgments rendered. See also 1 Chit. 57; Harrison v. Field, 2 Wash. 136; 3 Ves. Jr., 399, in notes.
    To remedy this defect in the law as it before stood, the statute of Ohio provides that the personal representatives of the decedent may be made parties to the judgment, after it shall have been rendered in cases where one or two, or more defendants die pending the action. Swan’s Stat. 608, 609, secs. 69, 70. The process prescribed for this purpose is the writ of scire facias, to be served and returned in the same manner as a summons. A similar remedy is also provided by statute, in cases where the death happens after judgment. If, then, the complainants, in the case made, have any legal remedy, the mode of proceeding to enforce it was plain, specific, and exclusive, and, we may add, full and adequate.
    But, it is argued by the complainants, that the appropriate remedy in this case, is in chancery, for the reason that it is a proceeding against administrators, the nature of whose office constitutes them .trustees of the creditors. It is, of course, conceded that the assets of an estate, whether insolvent or otherwise, *is a trust in the hands of the personal representative for the payment of debts. But it does not follow that, because it is a trust, any person who claims to be a creditor, can go into chancery for the purpose of litigating the question, whether he is, or is not, a creditor. If the rule is as broad and comprehensive as has been claimed, any one, having a demand against an estate, whether equitable or not, or whether existing in judgment, bond, promissory note, or otherwise, might resort to chancery, in the first instance, to establish his right to recover. But we do not understand that such latitude has ever been given to chancery jurisdiction; but that, in order to give such jurisdiction, in suits against administrators, the case must disclose some element of equity jurisprudence, other than the fact that the assets constitute a trust.
    It has been decided that “a creditor, before judgment, may file a bill to compel the distribution of a decedent's estate.” Grosvenor v. Austin et al., 6 Ohio, 112.
    This is, as we think, as far as this or any other court has gone in matters of this sort; but, before he can be permitted to come into a court of chancery to “compel distribution,” his character as creditor must be first established or admitted. Piatt v. St. Clair’s Heirs, 6 Ohio, 233. In the case of McKay v. Green, 3 Johns. Ch. 56, Chancellor Kent, in giving the opinion of the court, says:
    “ The bill is not framed for an account of assets, or so as to entitle the plaintiff to proceed in this court as a creditor. He can only come here for an account and discovery of assets, and on the ground of a trust in the executor or administrator to pay debts. 1 doubt whether a creditor ought to come into this court, in an ordinary case, and without some special cause, to collect his debt from an executor or administrator. It would seem not to be enough to state that he is a simple contract creditor, for this would invite all suits against executors into this court. The ordinary and proper, as well as the cheaper and easier remedy, is at law. The resort here is only in special cases.”
   *Birchard, J.

The first question to be-disposed of is the motion to dismiss the appeal, for if that be with the respondents, it is manifest that we should not look to the other questions presented by the papers.

In general, there is very little difficulty in ascertaining the extent and manner of acquiring jurisdiction by the several courts of this state, inasmuch as they are prescribed by positive enactments. It sometimes happens that doubts arise, growing out of hasty legislation or want of care in preparing bills, without reference to the provisions of prior laws.

Section 2 of the act to organize the judicial courts, confers upon ■the Supreme Court appellate jurisdiction from the court of common pleas, in all civil cases in which the court of common pleas has original jurisdiction.

If we depend upon this position alone, it will hardly be contended by any one that the court entertain the case at bar; for, upon examining into the jurisdiction which the court of common pleas had of the case, it will be found to be appellate, not original. Section 207 of the act to provide for the settlement of the estates of deceased persons (Swan, 377) provides, “ that any person whose claim shall be disallowed by any of the commissioners, and the executor who shall be dissatisfied with the allowance of any claim, may appeal from their decision to the court of common pleas, in like manner as such parties may appeal from the judgment of a justice of the peace, and the same proceedings shall be had in the court of common pleas upon such appeal, and upon the appeal bond given by the creditor, as is, or may be, directed by law upon appeals from a justice,” etc.

It was in pursuance of the provisions of this section, that the court of common pleas acquired its jurisdiction. The cause came there on appeal from the “commissioners of insolvency.” It was not a proceeding originally instituted in that court, and the statute, by virtue of which it was there at all, prescribes the manner of the further proceedings in the case. *They were to be the same proceedings directed by law on appeals from justices of tho peace.

It is not pretended that a suit appealed from a justice to the common pleas can be taken from that court into the Supreme Court by appeal. And although it is admitted that this statute will bear a construction forbidding the further appeal in this case, yet it is contended that it does not require it, and.wül admit of a different one, to wit, that suits at law under $100 are reviewable by writ of error only, but that the suits of sufficient magnitude to admit of original jurisdiction in the common pleas, are to bo regulated by the rules governing such suit; or it admits a review of all eases of law by error, and of all cases in chancery, by appeal or bill of review. It is difficult for us to see how this proposition can be maintained. The reasoning that will support it is not given in the argument of counsel, and we have not the ingenuity to discover it. It is true that the jurisdiction of a justice of the peace is limited to sums of $100, but was it the intention of the legislature to so limit the action of the commissioners of insolvency under the statute? Certainly not. They ai’e to “receive and examine all claims of creditors against the estate of the deceased.” The language is comprehensive and unambiguous. It admits of no doubt. “All claims of creditors ” comprehends claims of every description, whether large or small. Indeed, the object of the commission would be defeated by the construction suggested, in all cases except where each debt against the estate shall be less than $100, for upon the presentation of the report no distribution could bo made until all the large as well as small claims had been ascertained. Again, it is contended that this is a proceeding in chancery, and that an appeal^ is allowed by section 52 of the act regulating the practice in chancery. Swan, 713. How is this? The form of the pleading demurred to bears a resemblance to a bill in chancery, and the author has so christened it. • For purposes of identity it may be well enough to adopt the name given by him to his own production, yet for the purpose of settling *tbe merits of the defendants’, motion, it is proper to look at the thing itself, to dissect -it, and see what it is in substance. Now, the suit was begun by filing a bond executed by the defendants’ intestate) with a demand for its allowance by the commissioners of insolvents, as a just debt against the estate, in order that plaintiffs might receive their just distributive share of the assets. It was a proper subject for investigation at law — was rejected and appealed to the common pleas, and when first in that court it was a suit at law upon a bond. . By the death of Terry, after service, the original suit as to him had failed, but as to his co-obligors, had been prosecuted to final judgment and execution. The statutes prescribed a way of making Terry’s representatives a party to that judgment — not, however, the statute regulating proceedings in chancery, nor section 189 of the statute providing for the settlement of estates of deceased persons. The whole object of the suit, at its inception, as well as at this time, is to establish the fact that the bond is a just claim against the estate of Terry. At first, it was a proceeding at law, and if it is not that now, it is something which the law does not define. No subpoena has ever issued, and no party has ever appealed to waive process and become defendants in chancery. True, a part of the persons named as defendants were in court, but they were there as defendants to a suit which came by appeal, and was to bo proceeded in as if it had been appealed from the judgment of a justice of the peace — that is, as the defendants in a suit at law. The case, then, has not the distinctive features of a chancery suit, and section 52, of the statute relied upon, does not help the plaintiff.

Motion to dismiss sustained.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    *The State of Ohio v. The Great Miami Turnpike Company, Dorson Edwards, and others.
    The tolls accruing to the state from subscription to the capital stock of turnpike companies, under the act of March 5, 1837, can not he subjected to the payment of the debts of the company.
    This is a bill of review, reserved in the county of Montgomery.
    It was filed originally in the court of common pleas, and its object was to reverse a decree rendered in that court at the November term, 1842, in a suit wherein Dorson Edwards was complainant, and the Great Miami Turnpike Company and others were defendants, and in which the State'of Ohio is a stockholder. The bill in that case was filed'for the purpose of subjecting the tolls of the company to the payment of its debts, said Edwards representing himself as a creditor; and such proceedings were had in that suit, that a decree was entered subjecting the tolls of the company to the payment of the debt of the said Edwards, and the debts of such other creditors as might be made parties, excepting only so much thereof as might be needed to keep the road in repair.
    To this bill of review, the Great Miami Turnpike Company, Dorson Edwards, and others, defendants, demurred, and the question reserved for the consideration of this court is, whether the tolls of the state are liable for the payment of the debts of the company ?
    P. P. Lowe, for the complainant in review.
    Odlin & Schenok, for the defendants in review:
    The state being a stockholder with others, in this road, has no privileges nor rights which do not belong to them. By subscribing *fo> the .capital stock of the company, she merged her sovereign character, so far as all transactions of that company were concerned, and became, in all respects, as any one of the other corporators. And, inasmuch as by the terms of the original subscription, and the act authorizing it, no advantages were reserved to her over others, the state can not, by any subsequent legislation, attach new conditions to that subscription. That would be to impair the válidity of the contract, and to attempt to withdraw or violate rights once legally vested in the corporation and in all the other stockholders — a thing impossible to be done— not within the constitutional power of the legislature. Bank of the United States v. Planters’ Bank of Georgia, 9 Wheat. 904 ; The State v. Tombeckbee Bank, 2 Stew. 30; Derby Turnpike Co. v. Parks, 10 Conn. 522; Nichols v. Bartram, 3 Pick. 342; Wales v. Stetson, 2 Mass. 146; People v. Manhattan Co., 9 Wend. 351; 1 Atk. 264.
   Read, J.

This bill is brought to reverse a decree had under the act of March, 1842, regulating the mode of collecting debts against turnpike companies, in which the state is a party, etc. The decree subjected the entire tolls. The act provides that the receiver appointed to collect the tolls, after paying the expenses of the necessary repairs of the road, shall, on the order of the auditor of the state, pay into the state treasury the amount which may be due the state, in proportion to the number of shares of stock, and the balance, after paying costs, to be applied in satisfaction of the dbcree in favor of the creditor filing his bill. How, then, can a decree, in the face of this act, be rendered, subjecting the tolls of the state to the payment of the debts of the company ? To do so, is to declare this act invalid. This only could be done upon the ground that the act is in violation of some provision of the constitution. It is said that the state, having embarked with the company, under the act of March 24, 1837, authorizing subscriptions by the state *to the capital stock of turnpike companies, is responsible for the debts of the company.

That act conferred no authority upon the company to contract debts binding upon the state. So far as the state was concerned, it was to be a cash business. The state subscription was to be paid just as fast and in amount equal to payments upon private subscriptions. As the value of a road depends much on its length, the whole theory of state subscription was simply this : The state say to the company, Just as much good turnpike road as you will build, the state will furnish you money to build just so much more in addition.” It makes no difference whether the state owns a divided half or undivided half of the road. One owner in common, or joint owner, is not permitted to apply the whole joint property or its proceeds to the payment of his individual debt. No builder of the road, or creditor of the company, is taken by surprise in this matter, because, had they looked to the statute, they would have perceived that the state bound herself to pay just so much, and they had no right to presume she would pay more. It would have been perceived, moreover, to have been the interest of the state that the road should be completed as it went along, or, at least, that no debt should be contracted binding upon her; because it is expressly provided that the state shall stop payment the moment the company fails to pay cash. As the company pays, so will the state. Now, it would bo marvelous, indeed, if the company, after the state had stopped payment, could go on and contract debts which reflect back and exhaust the property of the state already acquired. Indeed, I fear we shall be compelled to believe that this act was rightly named the plunder law.

The truth is, the principles of joint stock companies and partnerships have nothing at all to do with the matter. The state had the right to say how far she would be liable, and in»what manner this was done by public act, which was notice to all the world. The act which we are called upon to enforce, simply proteets the property of the state, cuts the company Uoosefrom the public treasury, and compels it to pay the debts of its own contracting, out of its own property. This is thought to be quite unconstitutional.

The court do not view it in that light. We therefore execute the law, and reverse the decree.


author: Birchard, J.

text:
    Paul Jones and Thomas Watkins, Jr. v. The Steamboat Commerce.
    A judicial sale of “a water-craft,” under the statute authorizing proceedings against the same by name, vests in the purchaser the title, divested of all liability to be again proceeded against under the statute, for a claim existing at the time of sale.
    The statute gives no lien. The lien is created by the seizure under the provisions of the statute; and, if successively seized on several claims, the claims are to be satisfied successively, according to priority of seizure. A private sale transfers to the purchaser the property in the same state in which it was held by the vendor, and subject to the same liabilities.
    This is a writ of error to the court of common pleas of Cuyahoga county.
    The record shows, among other matters, that the common pleas decided the judicial sale of “ water-craft,” under the provisions of the statute authorizing proceedings against the same byname, and transferred to the purchaser a clear title to the craft, discharged of all liability for previous debts. To review this opinion, this writ of error was sued out, and, by arrangement of counsel, no other point was to be argued or decided.
    Bishop & Backus, for the plaintiffs.
    *The argument of Bishop & Backus is substantially the same as the one submitted by them, at the present term of the court, in the case of the Steamboat Waverly v. Joseph Clements, and is therefore omitted.
    Hitchcock & Wilder, and Payne, Wilson & Wade, for defendant :
    We remark, in the first place, that this statute is in derogation of common law, and should therefore be construed strictly. On this point we would refer to the dissenting opinion of Judge Birchard, in Lewis v. Schooner Cleveland, 12 Ohio, 241. The lien, if any exist, being a secret dormant lien, of which a ¡purchaser can have no notice prior to 'seizure, can not be held to exist unless expressly given by the statute, or by necessary implication.

    The cases heretofore decided in this state do not really bear upon the case, though the language of Judge Read, in Canal-boat Huron v. Simmons, 11 Ohio, 458, so far as it goes, is really in our favor. The case of Lewis v. Schooner Cleveland, 12 Ohio, 343, was a case of private sale. Between such a sale and a judicial sale, there is a manifest distinction. It is founded in reason, and is incorporated into the Louisiana Code, 1008, arts. 3206, 3207; see also 8 Mass. 326.
    The decisions of New York can throw little light on the subject; for, though the language of the statute of that state and ours is, in many particulars, identical, yet their statute has this phrase, which ours has not, “ that debts, so contracted, shall be a lien upon such ships,” etc. That is, it is liable to be sued. This is the operative part of the first section.
    We contend, then, that the lien attaches from the time of the seizure, and that the liens, after the first seizure, attach, and must be discharged in the order in which the claims are prosecuted.
    This is in accordance with general principle, and *avoids conflicts and confusion. Clarke’s Admiralty Practice, 84; 1 Wend. 40.
   Birchard, J.

This case involves a new question under the law providing for the collection of claims against steamboats by name; and, by the agreement of counsel, one point only has been discussed, which alone is to be decided.

They have stated it thus : “If a craft has been once sold under this law (Swan’s Stat. 207), does it bar another seizure and sale of the same craft, on a claim existing at the time of the former seizure and sale?” In other words, does a bona fide judicial sale of this species of property pass a title to the purchaser? Simple as is the question, it has to us been somewhat embarrassing, although the point was never before this court in any other case, and now for the first time has been passed upon ; yet, in the cases growing up under the provisions of the law, heretofore disposed of, we have been favored with the views of many very eminent counsel, residing in different parts of the state, and so singularly infelicitous is the wording of the statute, that I know not that any two members of the bar place the same construction on all its parts. Under these circumstances, we may consider ours tlves fortunate beyond the common lot, if our construction shall happen to meet the approbation of the entire profession.

Section 1 of the act declares steamboats shall be llable for debts contracted, etc.

Section 2 declares that the person having the demand may proceed against the owner, master, “ or the craft itself."

Sections 4 and 5 authorize the seizure and detention of the craft on mesne process.

Section 6 reads, “ That, upon the return of the writ, the pleadings and other proceedings shall be as in other cases of process, served and returned. And, after this judgment, the property seized and still held, may be sold upon execution to satisfy the judgment; and the surplus money, if any, arising *from such sale, shall be returned to the owner, master, or agent, on demand, as in other cases of execution,” etc.

The craft “ shall be liable." These words have sometimes been spoken of as creating a lien for the .demand. If they have such effect, the claim first in order must have priority; and, if the craft be much in debt, the purchaser of the later liens, although the creditors prior in time might never think of asserting their claims, would never know when they might purchase with safety, and sales and transfers and credits upon the security of the craft would ever be hazardous. But these words are not those usually employed in statutes, when the legislature intend to create a lien, striotly speaking. Thus section 1 of the act regulating judgments and executions (Swan, 467) provides, that “lands, tenements, goods, and chattels shall be subject to the payment of debts, and shall be liable to be taken on execution and be sold.” Hero the words are the same, and yet this part of the act has never been construed to create a lien. The owner, notwithstanding this clause, can transfer any of the property named, and clothe the bona fide vendor with a good title, no matter how much he may be indebted. Section 2 creates a lien. The lands, etc., “ shall be bound,” from the date of the judgment. The goods and chattels “ shall bo bound” from the time they are seized in execution. Now if the intention had been to create a lion, that is, “ bind the boat," instead of creating a liability to mesne process, and to be substituted as defendant, in place of the owners, the fair presumptioft is that the words and phrases commonly used to convey that intention, and not those commonly used to convey a different moaning, would have been employed. We therefore declare that section 1 of the act does not create a lien. It merely declares a liability, leaving the mode of enforcing it to the provision made in the four next succeeding sections.

The provisions of section 4 authorize a lien, by providing for the seizure of the craft, and its detention until discharged by due course of law. From the time of this seizure a lien is created; the property is bound, and may be sold on execution. It is, in our opinion, the only thing which can be regarded *in that light. This construction will aid the vigilant creditor, by allowing to him the same advantage that one secures to himself by making a levy on personal property. It will enable him to satisfy his claim out of the proceeds of the sale. Its operation will be the same as occurs in other cases of susceptible levies of several executions on the same piece of personal property. The lien first attaching, by virtue of the seizure, will bo first satisfied, and so on, in the order of priority. There may and doubtless will occur cases of hardship, arising under this construction. Several possible cases are suggested by counsel ; as if the craft should be seized, condemned, and sold, and the overplus paid over to the owner, before a prior creditor is informed of the proceeding. It is true that he would lose his right to proceed in that case against the “ craft itself,” by name. But an answer to this is, that the law favors the. diligent and vigilant. No one is compelled to permit a debtor craft to depart without security; and if he do so, and thereby lose his claim, he need blame no one but himself. The case of an indulgent creditor who delays issuing his execution until a more v.igiiant creditor has levied upon all the property of the judgment debtor, is a case of as great hardship.

A craft navigating the waters of the state, can not be sold under this statute, without disturbing its regular trips from place to place; and the delay will enable the vigilant, seeking to prosecute their claims, to attach it successively at any time after the first seizure, and before sale, and, in that way, make out of her the amount for which a sale can be effected. The first judicial sale, then, must pass the entire interest, and vest in the purchaser a perfect title. Indeed the provisions of section 6 seems to show that the object was to*treat the property, after execution upon it, the same as if it had been levied upon by any other execution against the owner.

Counsel have urged that such a construction is inconsistent with the provisions of section 2 of the statute, and virtually repeals it. This, however, is a mistake. The right to sue the owner, master, or craft, is recognized by this ^construction. It is only limited by requiring the suit against the craft to be instituted before it is converted into money. The statute of limitations may be said to repeal the law with the same propriety; for that would limit the time after which a suit could not be sustained.

The case of the steamboat Waverly, decided at this term, is also-relied on as an authority against this construction. The point decided in that case is a different one. That was a ease of private sale, to a purchaser who had notice, and the decision is placed on different grounds. A purchaser at such sale takes only the interest and title of the vendor, and holds his property as his vendor held it. The one can ‘convey no better title than he has, and the other can acquire, by his purchase, but the same. This distinction may well be made between the two eases. The private sale is the act of the owner for his individual benefit, and the purchaser may secure himself by taking indemnity against existing liabilities from the vendor. The judicial sale is the act of the law, and the purchaser at such sale can have no indemnity — can require no disclosure of the existing liabilities from the owner; and, were he to solicit information from him, it is not likely he would be disposed to give it, in aid of a forced sale, where the tendency of the information would be to reduce the amount of the bids upon the property. Judgment affirmed.


author: Hitchcock, J.

text:
    Samuel Mayham v. Benjamin Coombs, Ann A. Parker and others.
    Under the statute of Ohio, a mortgage takes effect from the date of its delivery for record; and, until so delivered, will not prevail against a junior recorded mortgage, although the junior mortgagee had notice of the existence of the prior mortgage.
    An unrecorded mortgage must be postponed to the lien of a judgment recovered after the date of the mortgage.
    The vendor’s lien is lost, where the vendor takes real or personal security for the payment of the purchase money.
    This is a bill in chancery, reserved in the county of Clermont.
    This bill is filed by the complainant to foreclose a mortgage, and to procure the sale of mortgaged premises. Benjamin *Coombs is the mortgagor, Anna Parker a mortgagee, and Matthias Kagler a judment creditor. There arc other defendants,, but for present purposes, it is unnecessary to specify the relations in which they stand to the case.
    The facts, so far as respects the several mortgages and the judgment, are as follows : Anna Parker, on March 12,1.838, contracted to sell to Benjamin Coombs 101 acres of land, and which is the-only land about which there is any controversy, and gave to him a title bond. At the same time she took his note for the purchase money, signed by James Coombs as his security. On July 18, 1840, she conveyed the same land, by deed duly executed, and took back a mortgage, to secure the payment of $1,616, the balance due of the purchase money. This mortgage was recorded on November 11, 1840.
    On October 30, 1840, Benjamin Coombs executed to the com* plainants a mortgage of the same premises to secure the payment of $1,269, which mortgage was entered for record on the day of its date.
    This latter mortgage also covered fifty acres of land in addition to the 101 acres, which, in 1837, had been mortgaged by Coombs to one Sbadrack Lane, to secure the payment of $270, which mortgage, on May 17, 1841, was assigned by Lane to the complainant. As to this fifty acres, there is not, at present, any controversy. On July 30, 1840, the defendant, Matthias Kag'er, recovered a judgment, in the court of common pleas of Clermont county, against Benjamin Coombs, for 1506.25, and costs of suit.
    Anna Parker, in her answer to the bill, charges that the complainant, at the time he received his mortgage, had full notice of the existence of her mortgage, and that with a view to defraud her, he procured his to be first received; and she calls upon him, by interrogatories, to answer this charge.
    In answer, he denies notice peremptorily. Much evidence, however, is on file to prove notice, but the view of the case *taken by the court, renders it unnecessary to abstract this evidence.
    The defendant, Parker, further alleges, in her answer, that the consideration of the note secured by the complainant’s mortgage, is made up, in a great measure, of exorbitant interest, and such exorbitant interest compounded, from time to time; and she calls upon him by interrogatories to answer this allegation, and set forth the original consideration, which was the foundation of the note, and the manner in which it has been increased to its present amount.
    These interrogatories the complainant refuses to answer, for the reason, as he alleges, that he is informed by counsel that he is not bound to make answer. This answer is excepted to.
    John Jollieee, for the complainant.
    John W. Lane, for the defendant, Anna Parker.
   Hitchcock, J.

The facts in this case show that the defendant, Anna Parker, has the oldest mortgage upon the premises.in controversy, that mortgage bearing date July 18, 1840, but it was-not recorded until the 11th day of November following. Before this time, to wit, on the 30th day of October of the same year, the complainant had procured a mortgage of the same premises, which was entered for record on the day of its date.

Now, there can be no doubt that, under these circumstances, at law, the mortgage of the complainant is the preferable lien upon this land. Section 7 of the act expressly declares that mortgages “ shall take effect from, the time when they are recorded ; and if two-mortgages are presented for record on the same day, they shall take effect from the order of presentation' for record; the first presented, shall be the first recorded.” And if they take effect from such time, they surely could have *had no effect before. It is, claimed, however, that before recording- a mortgage, although in form a.legal mortgage, it ‘Hakes, effect”- as an equitable- mortgage, and that a subsequent mortgage, with notice- of this previous mortgage, w-ill be> postponed in equity. This question was before the. court at the last term,-in the.-case of Stansel v. Roberts et al., 13 Ohio, 148, and it was decided that the lien of a second mortgage, first recorded, is preferred; that notice of a prior unrecorded mortgage will not, under the Ohio statute, postpone the second mortgage, and that it does not make any difference that the first mortgage was given to secure money borrowed to pay for the land.

I am aware that this construction of the statute is not entirely satisfactory to the profession, as the law thus construed interferes with previous received opinions of equity principles, as applicable to the subject. But it is not perceived how a different construction would have been put upon the statute, by any rule of construction known in law. Mortgages “shall take effect from the time they are recorded,” or, according to a subsequent statute, from the time when entered or delivered for record. There is no ambiguity, no uncertainty, in the phraseology. It is plain and explicit. Not that it shall take effect at law, but that it shall take effect from that time. It is the delivery of the instrument to the proper officer, or at the proper office, for registry, that gives it vitality. There is no more impropriety in this legislation than there is in saying that a deed for the conveyance of land, although -otherwise executed according to the forms of the law, shall not operate even as between the parties as a conveyance, until acknowledged before competent authority; yet such is our law; and it is held that such deed can, until acknowledged, be treated in no other manner- than as contracts to convey.

The opinion that it was the intention of the legislature that a mortgage should be rendered in order to give it vitality, is, as it -seems to the court, perfectly apparent, from an examination of the different laws providing for the execution and acknowledgment *of deeds. Section 4 of the act of January 30, 1818 (Chase -Stat. 1041), “to provide for the proof and acknowledgment of deeds and other instruments of writing,”'provides, “ that all deeds, mortgages, and other instruments of writing, executed agreeably to the first and second sections of this act, shall be rendered within six months from the date of the same, within the sounty■wherein such lands, tenements, and hereditaments are situate; and all deeds, mortgages, and other instruments of writing, executed agreeably to the third section of this act, shall be recorded within six months from the date of the same, within the county wherein such lands, tenements, and hereditaments shall lie; and all such deeds, mortgages, and other instruments of writing, executed, acknowledged or proved, and recorded as aforesaid, shall be good, and valid in law; and if any deed, mortgage, or other instrument of writing, as aforesaid, shall not be recorded within the time limited as aforesaid, such deed, mortgage, or other instrument of writing shall bo considered fraudulent against any subsequent bona fide purchaser or purchasers, without knowledge of the existence of such conveyance; provided, that such conveyance may be recorded after the expiration of the time herein re quired, and shall, from the date of the record, be notice to any subsequent purchaser or purchasers.”

The first and second sections of this act relate to deeds executed within, the third to deeds executed without, the statev Previous to this act, one year was allowed for recording deeds of the latter description.

By this section it will be seen that unrecorded deeds, mortgages, and other instruments were good as against subsequent grantees with notice.

This act was repealed by an act’of the same title, passed February 24, 1820. Section 4 of this act, however, is substantially, if not identically, the same with section 7 of the act of 1818 (Chase’s Stat. 1149); and it will be observed that, as to recording, and the effect thereof, mortgages are placed precisely on the same footing with other deeds of conveyance.

*The last-named act was repealed by the act of 1831, the law now in /oree. By this latter law a difference is made between mortgages and other deeds of conveyance. Section 7 provides “that all mortgages, executed agreeably to the provisions of this act, shall be recorded in the office of the recorder in the county in which such mortgaged premises are situaited, and shall take effect from the time when the same are recorded; and if the two or more mortgages are presented for rocord on the same day, the first presented shall be first recorded, and the first recorded shall have preference.”

Then follows, in section 7, “ that all other deeds and instruments of writing, for the conveyance or incumbrance of any lands, tenements, or hereditaments, executed agreeably to the foregoing provisions, shall be so recorded within six months from the date thereof; and if such deed or other instrument of writing shall not be recorded within the time heroin prescribed, the same shall be deemed fraudulent, so far as relates to any subsequent bona fide purchaser, having, at the time of making such purchase, no knowledge of the existence of such former deed or instrument of writing, and may be recorded after the expiration of the time herein prescribed ; and from the date of such record shall be notice to any subsequent purchaser.”

It will be seen that, by this last legislation, mortgages and other instruments of writing, which before had been provided for in section' 1, are separated. Deeds of conveyance, other than mortgages, may be recorded within six months ; but the principle is retained, that although not recorded, yet a subsequent purchaser, with notice, can not defeat the title of the grantee. The same principle had prevailed with respect to mortgages until this time. But by this law no time is specified within which they shall be recorded; that is at the election of the mortgagee. It is prescribed, however, that they shall take effect of the time of recording. What means all this? Was it done without design, through mere carelessness or want of attention ? It is evident that a change in the law was ^intended. It was thought that there was some mischief in the previous law, and the object was to supply a remedy, and that mischief was, as we must suppose, from the course of legislation, that a man might take a mortgage of his neighbor’s property, and keep it concealed for six months, thereby enabling that neighbor to contract further debts, which he would be unable to pay, and thereby defraud the community around him. To remedy evils of this character, the law-making power thought it good policy to provide that this species of conveyance should only take effect from the time of recording — from the time that notice was given of the incumbranch upon the public records of the county. Whether the policy was sound or not, is not for us to say. It is sufficient for us to know that such is the policy. But we, in fact, believe that the policy is good, and if persevered in, will tend to prevent, and actually will prevent frauds. We have no doubt that, under this construction, frauds may be practiced, and hard cases arise. The ease before tl e court is a liarcl one. Anna Parker sold her land, and took a mortgage to secure the purchase money; she neglected to place this mortgage upon record. She may in consequence lose the debt, but it will not do to bend the law to prevent its operation against her.

Bat, as between ordinary mortgages, I can not perceive how this construction can operate improperly. I know it is said that a subsequent mortgagee, with notice, defrauds the prior mortgagee by putting his mortgage first upon record. In one sense of the word perhaps he does, but there is no actual fraud. Take an instance: A. and B. are creditors of C.; the debts are equal, and either is sufficient to sweep away the entire property of the debtor; A. seeks his opportunity, and for the security of his debt procures a mortgage upon the entire property of C.; when he does it, he knows of the debt of B., and knows further that his mortgage will entirely defeat the collection of that debt. Now, in the common acceptation of the term, and according to the ideas of the profession, here is no fraud. True, B. is deprived of the collection of his debt, but *thero is no fraud. A. is the vigilant creditor ; he only took the mortgage to secure what was honestly his due. But change the case: A., after having procured his mortgage,becomes negligent; he does not place it upon record ; B., knowing the existence of that mortgage, but equally anxious to secure bis debt, procures a mortgage, and places it upon record. All cry out, here is a fraud. Now, my perceptions are so obtuse that I can perceive no difference, in a moral point of view, in the actions of these two men. They are both creditors, and both equally anxious to secure their debts. They pursue the course pointed out by law to effect their object. The one is the most vigilant to get his mortgage executed; the other to get his recorded. The course of neither is in accordance with the principles of abstract justice. Such justice would require that, inasmuch as the property was not sufficient to pay both, it should bo equally divided between them.

It is attempted, in this case, to set up the vendor’s lien for the protection of Mrs. Parker. This can be done only where it appears that the vendor relied upon this lien as security for the payment of the purchase money. In this case, a note, with personal security, was given for the purchase money in the first instance, and subsequently a mortgage.

It is urged by counsel, that although, as between mortgages, the first recorded mortgage must prevail, yet that an unrecorded mortgage, being in equity a specific lien, must prevail as against a prior judgment lien, which is general. If we are right in t.h® construction of the statute, if a mortgage does not take effect until recorded — in other words, if the recording is part and parcel of the execution — it is difficult to see how this position can be sustained. If, as we suppose, the leading motive of the legislature, in the enactment of the law, was to have incumbrance upon land placed upon the record of the county, to adopt the principle insisted upon, would be to defeat that intention. The case of Lake v. Doud, 10 Ohio, 415, is cited in support of the position assumed by defendants’ counsel. In that case, there was no judgment lien.

The ^judgment had been rendered in a county different from the one in which the land in controversy was situuted. But execution had been levied upon the land in controversy, and it had been sold. The purchaser did not set up any claim against the mortgage. The great question in the case was a question of fraud, and the court found, not that there was constructive fraud, but that an actual and aggravated fraud had been attempted upon the rights of the complainants. The question was made by defendants, whether the deed of the complainant would be enforced, not being a legal mortgage; and the court held that it could, and cited as authority the case of the Bank of Muskingum v. Carpenter, 7 Ohio, 21. The case in 7 Ohio was undoubtedly correctly decided, but the mortgage in controversy, in that case, was executed long before the act of 1831.

In the case of Lake v. Loud, this latter act was scarcely taken into consideration by the court; the great, the leading question, as before stated, being the question of fraud.

The case of Magee v. Bell, Adm’r of Beatty, 8 Ohio, 396, was one in which the question as to priority of lien was raised. The plaintiff was a judgment creditor of Thos. T. Beatty; the intestate was a creditor whose debt was secured by mortgage. The mortgage was delivered for record, before the first day of the term, when the judgment was entered, but was not copied into the record until afterward. When the case was first under consideration, the question was, whether the mortgage should take effect from the time of its delivery for record, or from the time it was actually copied into the record. If, from the time of delivery lor record, the mortgage in the case then before the court was to bo preferred to the judgment. If from the time it was actually copied into the record, then the lien of the judgment was the preferable lien. Upon this question, the court divided in opinion, and this division of opinion induced the legislature to pass the declaratory act of March, 1838. In that case, it was evident that the court considered that the lion of a judgment must be preferred to any lien of an unrecorded mortgage.

*Upon the whole, the court are of opinion that the judgment of Kagler is the preferable lien upon the 100 acres of land, and that the mortgage of the complainant must be preferred to that of Anna Parker. As we suppose the case was reserved for the purpose of settling this point, we shall not now enter a final decree, nor order a sale of the mortgaged premises ; but the case will bo referred to a master, to ascertain the amount due upon the respective liens, with instructions to report at the next term of t.he court in Clermont county.

In making this inquiry, the master will examine the complainant on oath, touching the consideration of'the debt secured by his mortgage. In the answer of Anna Parker, she charges that much of the consideration of this note is exorbitant interest, such exorbitant interest being compounded ; and she calls upon complainant, by interrogatories, to answer this charge. This he refuses to do; and he says, under the advice of counsel, that he is not obliged to do it. We differ from counsel on this point; the interrogatories must be answered, or what will result in the same, thing, the complainant must answer on oath before the master.


text:
    Henderson W. Horton v. James Horner.
    A case appealed from the court of common picas, must be heard in. the> Supreme Court, upon the same pleading as in the court below,, unless changed, upon good cause shown, by order of the Supreme Court.
    Where a note is executed in the State of New York, payable in thafcstate, the ■ maker residing there, it is controlled by the statute of limitations ofi that, state, when properly pleaded.
    This is a bill in chancery, and comes before this court, by ap*peal from the court of common pleas of' Lucas county.

      The object of the bill is to collect a claim in favor of the complainant, as assignee of James H. Forsyth, against the defendant, *for the purchaso money of a tract of land sold by Forsythto the defendant, and to enforce the-vendor’s lien for said purchase money.
    The bill states that on July 5, 1836, James H. Forsyth, by verbal agreement, sold the defendant, for $2,844, one-half of a certain ninety acres of land ; that, in performance of that agreement on his part, he, on the same day, conveyed the same land to the defendant ; that no part of the purchase money has been paid, but the whole amount, with interest, is now due; that on October 24, 1840, Forsyth quitclaimed his interest in the land to complainant, and by same deed, assigned his claim against Horner for the purchase money due, and empowered the complainant to sue for, and recover the same ; that the claim for the purchaso money is an equitable lien on the land, and operates as a mortgage; prayer for an account and decree against Horner to pay the amount due, or in default, that his-right in the premises may be foreclosed, and .for general relief. The bill was filed April 1, 1843.
    This bill was answered on August 15, 1843. In his answer, the defendant admits the conveyance from Forsyth to defendant, and that the consideration mentioned in the deed, is $2,844, but expressly denies any agreement on his part, to pay that sum, or any other, for that conveyance ; and claims that Forsyth was, at the time of the conveyance, indebted to tho firm of E. Corning & Co., of which firm defendant was a partner in a large amount, and 'that Forsyth agreed to convey the land in controversy to defend.ant, to be by him held as security until the debt was paid ; that 'tbe-deed was afterward prepared and executed at the instance of 'Forsyth, and made absolute without any authority from defendant; that the amount of the consideration was stated in the deed without his knowledge or authority; denies any agreement to pay purchase unoney, and also that any money is now due from him on account of such -conveyance, and puts the complainant upon the proof of his title.
    ^General replication was filed to this answer August 24, 1843, and testimony was subsequently taken.
    At the June term of the court of common pleas, 1844, the following order was made: “ In this cause defendant has leave to file amended and supplemental answer upon the payment of the costs, since filing the original answer.”
    The supplemental answer was filed August 23,1844, and sets up the statute of limitations of New York and Ohio, and the statute of frauds of the same states, and also alleges that, since tho filing of the original answer, defendant has discovered that, although the deed from Forsyth to him was dated July 5, 1836, it was not acknowledged until Januai’y, 1837, and was not delivered until some time thereafter. Tho defendant also claims, in this answer, that all the matters set forth in the bill are such as may be tried at law, and that a court of equity can grant no relief.
    At the second term of the court of common pleas, after thia answer was filed, a motion seems to have been made in that court that it should be stricken from the files, for reasons in said motion stated.
    What disposition was made of that motion does not appear, but the case seems to have been heard in that court upon the pleadings as before stated.
    E. Lane and N. Rathbun, for complainant:
    The amended and supplemental answer was improvidently admitted upon the files, and should bo stricken off. Amendments in chancery are always allowed with great liberality, except in case of answers put in under oath; there leave is granted with great caution. Cook v. Evans, 9 Serg. 287; Thorn v. Germand, 4 Johns. 363.
    Tho court will not grant leave to amend for the purpose of setting up tho statute of limitations, except under peculiar circumstances. Sheets v. Baldwin’s Adm’rs, 12 Ohio, 120 ; 5 Dana, 82.
    *Tho statute of frauds does not apply. The case is taken out of the statute by part performance, to wit, tho delivery of the deed. Holt’s Heirs v. Hemphill’s Heirs, 3 Ohio, 238; Sites v. Kellar et al., 6 Ohio, 483; Pollard v. Kinne, 6 Ohio, 528.
    Neither does the statute of limitations apply. The action occurred within six years prior to the commencement of the suit. There being no time fixed for the payment of the debt, it was a debt payable on dorahnd, and the statute does not run against a debt payable on demand till demand made. Wright, 342, 526, 582; 16 Eng. Com. L. 344.
    But if the action were barred by lapse of time, it has been revived by the acknowledgment of the defendant. 2 Amer. Ch. Dig. 142, 149 ; Maury’s Adm’rs v. Mason’s Adm’rs, 8 Porter, 212; Wilcox Dig. 366.
    Young and Waite, for defendant:
    The court will not entertain the motion to strike the supplemental answer from the files. Granting leave to make corrections in pleadings is a matter resting in the discretion of the court to which the application is made, over which discretion the court of appellate jurisdiction will not exercise a control. Coffman v. Allen, Litt. Sel. Cas. 201; Jackson’s Assignees v. Cutwright, 5 Munf. 308.
    The complainant shows, by his bill, that he is not entitled to relief. He is seeking to enforce a vendor’s lien. This is personal— not capable of assignment. Jackman v. Hallock et al., 1 Ohio, 318; White v. Williams, 1 Paige, 506; Inglehart v. Armiger, 1 Bland, 524; Brush et al. v. Kingsley et al., decided during the present term.
    As this is a ease where a party is seeking to enforce a parol contract for the purchase of land, he must make clear proof. Phillips v. Thompson, 1 Johns. Ch.131; Eliason v. Henshaw, 4 Wheat. 225.
    *But no matter how clear the proof, we contend the action can not be sustained, inasmuch as the contract is affected by the statute of frauds. Ontario Bank v. Root, 3 Paige, 481; Coine v. Graham, 2 Paige, 181.
    There has been no such part performance as takes the case out of the statute, inasmuch as both parties may be placed in the same situation as before the part performance. Phillips v. Thompson, 1 Johns. Ch. 131;. Sites v. Keller et al., 6 Ohio, 490; Pollard v. Kinne, 6 Ohio, 528.
    We also claim that tho action is barred by the statute of limitations, and that this court should not retain jurisdiction of the case, because the complainant has adequate remedy at law.
   Hitchcock, J.

The first question presented to the court for consideration is on a motion made by complainant, similar to the one made in the court of common pleas, to strike from the files the amended and supplemental answer, setting up the statute of limitations and of fraud.

Section 114 of the practice act (Swan’s Stat. 684) provides, That when any cause is reserved by appeaL to the Supreme Court, the appeal shall be tried on the pleadings made up in the court of common pleas, unless for good cause shown ; and on payment of costs, the court should permit either or both parties to alter their pleadings;” and the same rules apply in chancery as at law. Now this is not a motion by either party to change or alter their own pleadings. It is a motion by one of the parties to change the pleadings of his antagonist, by striking from the record, or, which is the same thing, from the files, a portion of those pleadings. This can not be done, except under extraordinary circumstances. Whether the court of common pleas exorcised a sound discretion in allowing this answer to be filed, it is impossible for us to know, from anything disclosed in the case. Had that court been of the opinion that the indulgence given to the defendant to file an amended and supplemental answer, had been *absurd, the motion to strike that answer from the files would unquestionably have been sustained. In the case of Sheets v. Baldwin’s Adm’rs, this court held that the statute of limitations is not to be favored, and that a defendant in default will not bo permitted to plead it, unless under peculiar .circumstances. 12 Ohio, 120. But by the representation made to the court of common pleas, to obtain leave to file this answer, that tribunal may have been satisfied in this case, that peculiar circumstances existed to justify a departure from the general rule.

It is possible the court may have been influenced by the facts disclosed in the case, from the evidence then on file; evidence from which it appears that the complainant, although he charges that this claim was assigned to him in 1840, did not in fact become fully entitled to it until on the day the bill was filed, and from which it further appears that the pretended contract between Eorsyth and Horner, although mado in July, 1836, when the land in dispute was supposed to be worth some sixty-two or sixty-three dollars per acre, was not executed by Forsyth until the January tollowing, when the same land had dejmeciated in value from thirty-five to fifty per cent., and which is not worth now to exceed ten or fifteen dollars per acre. And when executed, it was not done by deed delivered personally to Horner, but by deed transmitted to him by mail to New York. And from which evidence it further appears that Forsyth is still indebted to E. Corning & Go., of which firm Horner is a partner, in a sum of some f 1,200 orüpl,500, an amount far greater than the value of the land; and that from this liability, Forsyth is discharged under the bankrupt law. These circumstances might have had some influence with the court. Whether they had or not, it is impossible for us to know. But we do know that the defendant was allowed to file this answer, and the court in which it was filed, refused to strike it from the files. It is now before this court as a part of the record, and we shall not, for any reason hitherto urged, change that record.

*Much testimony has been taken in the case to settle the controverted fact set up in the bill, and denies in the answer, whether there was an absolute sale of the land in controversy by Forsyth to Horner. And it is a point in the case, which has been fully examined by counsel, it being ds strenuously urged, on the one side, that there was an absolute sale, as it is on the other that the conveyance was intended merely as collateral security for a debt due from Forsyth to E. Corning & Co. Upon this point the court have not been able fully to concur in opinion.

But admitting that the sale was absolute, and for the consideration mentioned in the bill, is the complainant entitled to a decree? As a defense, the defendant sets up the statutes of limitations, both of the States of New York and of Ohio. Courts of chancery regard such statutes as much as courts of law; for if they do not, still a claim which would be barred at law, must, if prosecuted in chancery, be governed by the same rule. The bare circumstance that it is prosecuted in chancery, can not take it out of the statute. Now there can be no doubt but that this claim might have been prosecuted at law. What is it? Merely a demand for the purchase money for land sold. A proper subject for the jurisdiction of a court of law, and of which a court of chancery can not take jurisdiction, unless it is upon the ground that the complainant is the assignee of a chose in action, which is not negotiable. Perhaps, however, it may be thought a court of equity might take the jurisdiction on the ground that one object of the bill is to enforce the vendor’s lien. According to our views of the law, and according to the decisions of this court, this lien can not be transferred by the act of the vendor, so as to vest the right to enforce it in his assignee. It was so held in the case of Jackman v. Hal-lock, 1 Ohio, 318, and has beon so hold at the present term.

The complainant, then, might have had his action at law in the name of his assignor, for his use. This would have been his appropriate remedy. But in such case, the statute of -Nimitations might have been pleaded in bar. By commencing his suit in chancery, he can gain no advantage in this respect. If his demand is barred at law, it must be in chancery.

Now what are the facts ? The deed of conveyance from Forsyth to Ilorner, although it bears date in July, 1856, was not acknowledged until January 7, 1837, and recorded on the 28th of the same month. . Between these two dates, if all was fair in the transaction, it must have been delivered to Samuel H. Young, who transmitted it to Ilorner early in March of the same year — Horner then being a residont of Albany, in the State of New York. The contract for the sale, if any existed, was made in the State of New York. It is so stated in the bill, and so proved by the testimony-The complainant claims seven per cent, interest, on the ground that the payment was to be made in the State of New York. There was no specific agreement as to the time in which payment was to be made. From these circumstances, we have come to the conclusion, that Horner was liable to pay, upon the delivery of the deed, and when the deed was delivered, a right of action accrued to Forsyth. This delivery took plac^in January, 1837, although probably Horner did not receive the doed until some time in the month of March following. The bill in this case was filed on April 1, 1843. In what manner notice'was given does not appear. It probably must have been by publication, as Horner is not a resident of the state. Let this be as it may, six years had transpired from the time the cause of aetion accrued before the bill was filed. But it is said'that, within that time, there was an acknowledgment of the existence of the debt. We do not so understand the testimony. Again it is said that the defendant is a resident of the State of New York, and not within the State of Ohio, so that our statute could not begin to run. This debt was contracted in the State of New York; it was to be paid there; the debtor has always resided there. By the statute of that state, which is set up in the answer, the claim is barred. And our statute of limitations ^provides 'that where a contract is barred by the law of the state where it was made, the statute of such sister state may be set up as a bar here.

Upon a full consideration of the case, we are of opinion that tho case is with the defendant, and the bill must be dismissed.


text:
    Benjamin F. Allen v. William Medill and Elisha Barret.
    When a defendant neglects to prove his set-off in a court of law, he can not afterward, as a general rule, have the same set-off made in chancery; but if he has been induced to omit proof of the set-off by the improper conduct of. the plaintiff, by an agreement that his claim may be set-off after judgment, or by mistake as to such agreement, equity may relieve.
    It is incorrect practice to make a sheriff or other officer, who has an execution in his hands for collection, defendant in a bill to enjoin a judgment upon ■which the execution issued.
    This is a case in chancery, reserved in the county of Delaware.
    The matters in controversy will be best ascertained and understood by stating certain facts which transpired previous to the filing of the bill. c
    On or about October 30,1827, Benjamin F. Allen, the complainant, purchased of the defendant Barret and one King a woolen factory in Delaware. In part payment for said factory, Allen gave to Barret ten promissory notes of that date, for $1,000 each, payable at sa,id factory in woolen cloth, at wholesale factory prices. The first, payable five *years after date, and from that time one falling duo each and every year.
    On or about March 26, 1829, Barret being indebted to Campbell, Rudisil & Co., in the sum of $2,000 and more, deposited six of these notes with them, as collateral security. On the 9th of October of the same year, Barret procured these same six notes from Campbell, Rudisil & Co., on pretense of taking them to Delaware to raise money to pay Campbell, Rudisil & Co., promising to return them if he did not succeed. But, having obtained the notes, ho refused to return them or pay the debt. Campbell, Rudisil & Co.- then filed a bill against Barret, in order to compel him to re-deliver the notes. This bill was filed in Fairfield county, and Allen, as well as Barret, was made defendant.
    On October 6, 1840, Allen answered this bill.. In his answer, he admits the execution of the notes, and that he understood that they had been deposited with Campbell, Rudisil & Co. as security; says he has not seen them since they were pledged, and knows not where they are. That he had an account by way of offset to said notes, amounting to $1,062.98, and that it was understood between him and Barret, that whatever amount should accumulate, in their dealings, should bo applied to these notes.
    Barret having absconded,'" proceedings were had against him in Fairfield county, and one Newkirk, with whom Barret had pledged the two notes as security, in December, 1829, was made garnishee; and, at the March term of the court, 1832, surrendered the notes; and Newkirk, as well as Campbell, Rudisil & Co., filed their claims under the attachment. At the February term of the court of Fairfield county, the defendant, Medill, was appointed by the court special commissioner to receive payment on said ten notes, and, in default of payment, to prosecute suits thereon.
    In 1834, Medill, in the name of Barret, for the use of his creditors, commenced suit in the court of common pleas of Delaware ^county, upon the first three notes of $1,000 each, and which were all then due. The action in form was debt. To the declaration the defendant, Allen, pleaded the general issue, and, under the plea, gave notice of special matter to be relied upon as a defense, and also notice of set off. A trial was had in the court of common pleas, and the defendant succeeded in his defense; whereupon the plaintiff appealed to the Supreme Court, in which court, at the July term, 1838, judgment was rendered in favor of plaintiff for $3,000 debt, and $841.50 damages.
    This bill is filed for the purpose of having set-off against said judgment an account against Barret, which accumulated subsequent to the sale of the factory, and before the transfer of the notes, and which might have been set off at law. The original bill was filed November 28, 1^38; it was amended August 10,1840, and again August 29, 1842.
    The case made in the bill and amendments for relief is that before the trial of the suit at law, there being no controversy about the account of Allen v. Barret, but only about the special matter set up by way of defense, it was agreed between Medill, who was acting for the creditors of Barret, and the counsel for Allen, that there should bo no controversy about the account, but that the only question litigated should be that arising upon the notice of special matter, and if the defendant failed, then it was agreed that the account should be applied in part satisfaction of the judgment. With this understanding the trial progressed, and a judgment was rendered for complainant. In the Supreme Court the complainant, relying upon the same agreement or understanding, gave no evidence under his notice of set-off, but relied alone upon the special matter. In this court he failed, and judgment was rendered against him for the full amount of the notes and interest. Alter the judgment he applied to Medill to have the account applied upon the judgment, but to his astonishment this Was refused, and he was told that the account might be set off upon the subsequent notes. He insists that by such set-off, he shall not have ^justice done him, as the judgment is for money, while those notes are payable in woolen cloth, at an advance of from thirty to fifty per cent, above cash prices.
    These bills have been answered by Barret and Medill, who are the only defendants.
    Barret, who it seems is a brother-in-law of Allen, answers in such a way as to sustain, as far as he can do it, the claim- of the complainant.
    Medill, in his several answers, which are full and explicit, denies unequivocally those allegations in the bill which would give a court of equity jurisdiction of the case; especially, he denies ever having made any agreement to apply the account of Allen upon any judgment which might bo recovered.
    Charles Sweetzer and T. W. Powell, for complainant:
    Chancery has jurisdiction in a case like this, and the power to do justice between the parties. We refer to the following authorities : 2 Story’s Eq. 169; Pickett v. Stewart, 1 Rand. 478; Miller’s Ex. Rice, Ib. 438; Hughes v. McCoun, 3 Bibb, 254; Spencer v. Wilson, 4 Munf. 130; 4 Call, 279; Kemp v. Pryor, 7 Ves. 249; Picket, v. Morris, 2 Wash. 255; Clay v. Fry, 3 Bibb, 248; Cunningham v. Caldwell, Hard. 173; Carroll v. Price, 1 Bibb, 173 ; Cooke, 175; Kincaid v. Cunningham, 2 Munf. 1; Appleton v. Harwell, Cooke, 242; 3 Hayw. 88, 210, 305; Click v. Gillespie, 4 Hayw. 7; 4 Munf. 469.
    The proper parties are also before the court. Mitchell v. Lennox, 2 Paige, 280 ; Robinson v. Smith, 3 Paige, 323.
    Thomas Ewing and Henry Stanbery, for the defendants,
    submitted elaborate arguments, but as they were confined mainly *Lo the facts of the case, without any reference to authorities, they are not abstracted.
   Hitchcock, J.

It would seem that there can be no real controversy, but that the complainant, Allen, has a demand against Barret, which might have been set off in the suit at law. This claim was put forth by him as early as 1830, in the case of Campbell, Rudisil & Co., against Barret and himself, and was then stated to be $1,062.98. Medill, in his letter of October 16, 1834, speaks of this as being a just claim, and agrees that it may be applied upon the notes, when the correct amount is ascertained. And it does not appear that Medill, at any time, either before or after the rendition of the judgment, denied that Allen was entitled to this credit. He only insisted that as. it was not set off in the case in which suit had been brought and judgment recovered, it should stand over as a credit upon some of the other notes. Titus King states that this is the amount appearing to be due upon Allen’s books, and that the account is correct. In truth there does not seem tobe any controversy upon this point; and I think it may well be taken as established that this balance is due Allen. And it would undoubtedly have been allowed to him, had he not set up, in the case at law, a most unconscionable and groundless defense. Still he must not be deprived of his rights.

This account might have been set off at law ; and, as a general rule, where a man has failed to make a defense at law, he can not afterward be permitted to set up the same matter in chancery. It can be done under peculiar circumstances. A man is not bound, however, to set off any claim which he may have against his antagonist, and which is the proper subject of set off. If he prefers a different course, he may prosecute a separate suit, and recover a judgment, but he can recover no costs. This subject is very properly regulated by statute; after judgment is recovered, if the judgment of his antagonist is still subsisting, he may, on motion, have one sot off against the other. Courts of law, in this summary manner, do that justice between ^parties which was formerly done, and might still be done, by courts of equity.

But although we would not, in ordinary cases, sustain a bill like the case before us, yet there may be circumstances which would justify us in so doing. Allen might unquestionably have his action against Barret; but Barret has left the country, and not only so, the proofs show that he is insolvent. A judgment against him, then, would be of no avail, unless it could be set off against this judgment. It may be said, and has been said, that this account might be set off against subsequent notes; but the reasons assigned by complainant’s counsel why this should not be done, are not without much force. The notes upon which the judgment was rendered, were the first due. They were payable in cloth at an enormous price. By the judgment, they are payable in money. This account was contracted before these notes fell duo, and by agreement of parties, was to be applied iu part payment. These circumstances are all for the consideration of the court, but they are not sufficient to justify us in departing from the regular course of pi’oceeding.

The case made in the bill, however, if true, is one which would not only justify, but would require the interference of the court. The ground of relief relied upon is, that the complainant was thrown off his guard, and induced to neglect to make the proper defense at law, in consequence of the assurance of Medill, who was managing for those interested, that the account should be allowed after judgment. If this were so, this court would bo negligent of its duty not to compel the performance of that agreement. If these statements are true, a fraud has been practiced, and I trust we shall ever be ready to relievo against fraud. These allegations of the bill are denied in the answer; and by this denial, an issue has been made up between the parties.

Many witnesses have been examined, and much testimony taken.

The principal witness for complainant is Charles Sweetzer. He proves explicitly the charges made in in the bill; says he managed *tho case ior Allen, who is his brother-in-law. That before the trial in the court of common pleas, it was agreed between himself for the complainant, and Medill and Stanbery for the creditors of Barrett, that the case should be tried upon the defense set up in the notice of special matter; that no evidence should be offered under the notice of set-off; but that the amount should be allowed upon the judgment, provided one should be obtained. Toward the close of his deposition, he seems to express some doubt whether Mr. Stanbery heard all the conversation between himself and Medill. Ho says the conversation took place at the end of the bar table, and this arrangement was the only reason that prevented him from giving evidence, both in the court of common pleas and Supreme Court, under the notice of set-off.

Now here we have the statements of Medill and Sweetzer, in direct conflict with each other, and we believe there must be some mistake — some misunderstanding. As it is stated by Sweetzer that Mr. Stanbery was present, and taking part in this arrangement, wo would have been glad to have had his testimony. But we know enough of his honorable feelings and del ioate sense of propriety, to be satisfied that he would not testify in the cause of his client, unless compelled by the opposite party.

In addition to the testimony of Sweetzer, we have the testimony of Jesse Allen, a son of the complainant, who testifies substantially to the same facts. Now, it must be admitted that this witness testifies under suspicious circumstances, when it is considered that his testimony, important as it is, was not discovered until since the last term of this court. But still we should not perhaps be justified in saying that the statement which he makes is false, and entirely without foundation. From the testimony of Patterson, it would seem at least probable that there had been some conversation between Medill and Allen, or Medill and Sweetzer, in some sense like that stated by Sweetzer.

Taking all the testimony together, we are led to the conclusion *that there has been some mistake — some misunderstanding. In order to get a trial, for which Sweetzer was not fully prepared, Medill might and probably did say something from which Sweetzer drew the inference which he has stated, Medill not making nor intending to make any positive agreement upon the subject. If so, and if, in consequence thereof, Sweetzer was induced not to offer evidence of his offset, as he swears he was, it seems to us to present a case where, as a court of equity, we may interfere to do justice between the parties, especially when, if we do not interfere, it is manifest that the complainant will most probably lose his entire demand. Wo are satisfied that justice requires that the judgment should be credited with the amount of the account, to wit, the sum of $1,062.98, and that this may be done without violating any of the well-known rules of chancery practice.

The complainant, however, is claiming a credit of $1,100 or $1,200 beyond this, upon the ground that the amount of Allen’s account against Barret was not alone to be set off against the notes in controversy, but the amount of his account against Barret and Titus Ring, who seem to have been partners in the factory business before the purchase by Allen. Allen, in his answer to the bill in chancery in Fairfield county, on October 6, 1830, in which he sots forth the nature of his contract with Barret, makes no such pretense as this. In that answer he states the understanding to have been that his account against Barret should be applied upon the notes — not his account against Barret and King; and it was with respect to this account alone that the negotiation between Sweetzer and Medill, if there were any negotiation, took place. In this answer the amount of the account was stated, and stated, too, as it appears by the testimony of King, as it appears upon the books. There is nothing to show that any pretense was over made to Medill of an account over and beyond this. *

In the original bill , in the present case, filed November 28, 1828, in the amended bill, filed August 10, 1840, the statement is the same, with respect to this set-oif, as in the answer filed *1830. Nor does the second amended bill, filed in 1842, vary the case in this respect. Upon what, then, is the pretext founded? Merely upon a deposition of King himself, taken in 1841, in which he states that Allen had been mistaken with respect to his rights, and that the credits should be $2,185.77, instead of the sum named in the answer of 1830, and he attributes the mistake to the fact that Allen must have been in a great hurry when he made that answer. If this mistake was made through haste in 1830, it would seem there had been sufficient time for recollection in 1838, when this suit was commenced; and if not then, certainly before 1840 and 1842, when the amendments were made. And it is at least reasonable to suppose that Allen must have known as much with respect to the understanding between himself and Barret as King could have done.

There is .in truth no pretense for this additional credit, and I must say that the fact of its being insisted upon, is a circumstance more powerful in my mind than any other, to excite a doubt as to the equity of the entire claim.

It is objected on the part of defendants, that Medill was acting as a trustee in this business; and that, admitting that he made the agreement allowed in the bill, that agreement could not be enforced to the injury of his cestuis que trust. It seems to us that this defense can not avail. Medill, it is true, was a trustee for the creditors of Barret, but he was acting as attorney in the management of the case. "We consider the case as one whero an arrangement has been made by counsel at the bar of the court, for the trial of a cause, by reason of which defendant has been prevented from putting forth his particular defense, upon the expectation that he should have the benefit of it after judgment. In such case, if the agreement is not consummated, a iraud is practiced, if not by party, at least by attorney, and the party shall not receive the benefit of that fraud. We would not be understood as saying that there was in fact any positive agreement, so understood by Medill; but we entertain the opinion that there must have been some conversation, from which Sweetzer got the impression that there was *such an agreement, and that it was for this reason that the set-off was not made in the proper court. If he was mistaken in this, this very mistake, taken in connection with all the circumstances of the case, furnishes sufficient ground for the interference of this court.

It is again objected that Medill was acting merely as an executive officer of the court of common pleas, and should not have been made a defendant, and his case is assimilated to that of a sheriff. I know it is a common practice, in some parts of the state, to make a shei-iff, who has in his hands an execution, a party defendant to a bill, to enjoin the judgment upon which execution was issued ; and there can be no doubt that this, as a general rule, is entirely wrong. A sheriff is an officer of the law. He is in no shape interested in the judgment upon which the execution has been issued. But still, if the sheriff unlawfully combines with the creditor, unnecessarily to oppress and harass the debtor, he may with propriety be made a defendant. In the case before the court, Medill is charged with being the active agent in the commission of the fraud. He was, therefore, with propriety, made a defendant.

Again, it is urged that all the parties in interest are not before the court. Here there is no difficulty. The parties in interest are the creditors of Barret. They are not named, however, in the record of the judgment at law. When called upon to name them, Medill has refused to do it. It does not appear that they were known to the complainant. Under these circumstances, a majority of the court are of the opinion that relief may be granted upon the case as now presented.

In our opinion, the judgment should be credited with the said sum of §1.062.98, as of the date of the judgment, with interest thereon from the time the first note fell due, and that each party should pay their own costs ; the costs of the defendant to be paid from the fund in Medill’s hands, for the benefit of the creditors.