text:
    *Richard Stage v. Edson B. Olds, Thomas Huston, Joseph Olds, and Andrew Huston.
    Where several persons execute a bond, some as principals, and others as securities, at the same time, upon the same consideration, and for the same purpose, the instrument taking effect by a single delivery, they are, in law, joint obligors, and may be sued as such.
    It is immaterial in what form, or on what particular part of the paper the signatures are affixed.
    This is an action of Covenant, from the county of Pickaway.
    The plaintiff declared — for that, whereas, heretofore, to wit: on the sixth day of October, 1836, at the county aforesaid, the said Ed-son B. Olds, as principal, and the said Thomas Huston, Joseph Olds, and Andrew Huston, as sureties for said Edson B. Olds, by their covenant in writing, sealed with their seals, etc., agreed and bound themselves that the said Edson B. Olds, within five years from the first day of April, then next, (which period has now elapsed,) should pay to the Ohio Life Insurance and Trust Company the loan of fifteen hundred dollars, made by said company to the plaintiff, Richard Stage, and, if the payment thereof should be' sooner required by said company, that then he, the said Edson B. Olds, should pay the same, when required by said company, and pay all interest which should accrue thereon, from and after the first day of that month, (meaning the first day of October, 1836,) the said Richard Stage paying interest up to that time ; and that the said Edson B. Olds should save the said plaintiff, Richard Stage, harmless from all further claim on him by said company, on account of said loan: and then and there delivered their said covenant, sealed as aforesaid, to the said plaintiff; and the said plaintiff avers that, although,” etc.—
    The declaration proceeds to assign, for breaches, that the said loan has. not been paid by the defendants; nor has he been indemnified against it, but, on the contrary, the same remains ^unpaid, and [159 the plaintiff stands liable therefor, the said company still having a valid claim against him, by reason thereof, etc.
    The defendant, Edson B. Olds, craves oyer of the supposed covenant, and it is read in these words :—

      “ Circleville, October 6, 1836.
    “ For value reoeived, I hereby agree and bind myself to pay, within five years from the first day of April next, to the Ohio Life Insurance and Trust Company, the loan of $1500, made by said company to Richard Stage, and, if the payment thereof should be sooner required by said company, then to pay the same to said company, and to pay all interest which shall accrue thereon from and after the first day of this month, said Stage paying interest up to that time ; and I hereby agree to save said Stage harmless from all further claim on him by said company, on account of said loan.
    “ Witness my hand and seal the day above written.
    “ Edson B. Olds, [seal.]
    “We hereby bind ourselves, as security for said Olds, for the full and faithful performance of the above agreement.
    “ Witness our hands and seals, this 6th day of October, 1836.
    “ Thomas Huston, [seal.]
    “ Joseph Olds, [seal.]
    “Andrew Huston, [seal.]
    Which, being read, Edson B. Olds demurs.
    John L. Green, for defendant, in support of demurrer.
    We insist—
    First; This is not a joint covenant. It is several, as between the principal and his securities ; though, it is joint as between the securities. And, that a joint action against principal and sureties, can not be maintained upon it.
    The rule is, that several parties, contracting with the same party, 160] for one and the same act, shall be regarded as jointly *and not individually or separately liable, in the absence of any express words to show that a distinct as well as entire liability was intended to fasten on the promisors. 1 Chitty Pl. 47. Applying this rule, what is the undertalcing of these several parties ? It is not for one and the same act. The principal binds himself to pay, etc., and save harmless, etc. His undertaking is direct, unconditional. Not so with the securities. 'They covenant, not that they will, within five years, pay, etc., in any event, etc., but that their principal shall do so, and, if he does not, in that event, they will be responsible to the plaintiff. Their undertaking is collateral and conditional.
    The court must give effect to the contract, according to the intention of _ the parties. Here are express words and acts of the parties, showing their intention to create a distinct liability. They bind themselves, not as principals, to do the thing, but as securities for another, that he will do it. And this undertaking is, in an instrument, separate, from' that of the principal.
    If the covenant be joint, all the covenanters must be joined. If several, each must be sued separately. We ask, might not a separate action be maintained on this covenant, against the principal ? Surely. And we may test it thus : If the contract be joint, the release of one wcpld discharge the others. Now, surely, the release of these sureties would not discharge the principal. Could Edson B. Olds, in such a state of things, plead such release in bar, to an action against him, alone?. Such a result would follow, if this be a joint contract; for the liability, on such a contract, must be entire. On the other hand, a release of one several contractor, is not a discharge of the rest. Mathewson’s case, 5 Coke, 22, b.
    Again : Might not a joint action be maintained, on the covenant of the sureties, against them, not joining the principal? He has not joined with them, that they shall do any thing. Their liability depends on his not performing. Their liability is clearly joint, as between themselves. They might plead a release to their principal in bar, but on a different ground from that of joint contract.
    *When the question is of the joint or several liability of the [161 parties sued, the court must look to the words of the contract. They -can not make a contract for the parties. In Lee v. Nixon and Davison, 28 Com. Law, 67, the covenant was held to be several. It is true that there the word “ severally” is used. But that is not a clearer ease than this, to show the intention of the parties. Here, the principal, in one instrument, binds himself in the singular number : “ I agree, and bind myself,” etc. The securities, in a'separate instrument, bind themselves in the plural: “ We hereby bind ourselves,” etc. Surely, this is as strong evidence of intention to create a “ distinct” liability as can be conceived. The ease of Deusenberry v. O’Shiel, 2 Hall’s N. Y. 379, is like this. There, the undertaking of the surety, who was sued alone, was in a separate instrument, on the same piece of paper. True, the question of joint liability was not distinctly raised in that case ; but we must suppose the astute counsel in the case would have raised the point, had it been considered tenable ground.
    When parties have intended a several contract, but have used words which make it joint, courts of equity have interfered to give relief. Simpson v. Vaughn, 2 Atk. 31. This shows that at law, such language-is construed literally.
    The difference to these parties, whether this covenant be joint or several, may be material. By treating it as joint, the' plaintiff is enabled to sue all together. The sureties might desire the evidence of' their principal, to some material matter in discharge, and, if the covenant, as between him and them, was several, they might, by releasing him, avail themselves of his evidence. The securities might have a setoff against the plaintiff, of which they could not avail themselves in a joint action. In conclusion, on this point, we beg leave again to ask, as a test of this being a joint or several undertaking, would a release to these securities discharge the principal ? Mathewson’s case, above quoted, shows that it would not.
    Second : This is merely a covenant, to indemnify Stage against the payment of a debt already incurred, which was due at the time, and 162] payment'of which might be enforced at *any time. The court-will mark, it is not a covenant to save harmless from liability. The covenant shows this plainly. Olds covenants to pay, etc., within five years, etc., and, if payment should be 'sooner required by the company, then to pay, when required by the company. It is not, then, against a future, but a present subsisting indebtedness, which may be enforced, at any moment that the covenant is made. This plaintiff has no right of action, then, on this covenant, as broken, unfil he has paid fhe debt, or has, at least, been sued for it. The authorities are abundant to show that, where there is a condition or covenant to indemnify against; a debt, or duty, already incurred, and payable, the condition or covenant is not broken, unless the debt be paid, or duty performed, or suit-brought for the debt or duty. Where one is already liable to suit, it would seem absurd to suppose that the parties to a contract to indemnify, meant to guard against, or prevent such liability. Where, at the time of entering into the contract, there has been no liability incurred, there is reason to presume that it was the intention of the parties to-prevent such liability. Lewis v. Crockett, 3 Bibb. 196 ; 2 Com. Dig., 110.
    Por these reasons, we think the demurrer must be sustained.
    Ewing and Hunter, contra.

      The circumstance that the signature of Edson B. Olds, the principal, is affixed on the paper above the undertaking of the sureties, does not affect the case. It is all one covenant, made and delivered on the same day.
    The opposing counsel refers to the fact that the signatures and seals of the securities are affixed to their covenant, written below the seal of the principal. He merely notices it in passing, without laying any stress upon it! It is, in truth, entitled to no consideration whatever. It is the covenant itself, not the manner in which it is written or signed, that fixes its character. The covenant is ’the agreement of the parties ; the form and words in which it is conveyed is the *mere [163 shell — the bark that encloses it. If .the parties all covenanted for the performance of the same act, the covenant is joint, unless there be in it express words of severance. Chitty on Contracts, 81.
    The rule he extracted from 1 Chitty’s Pleading, 47, viz : “ That several parties, contracting with the same party for one and the same act, shall be regarded as jointly, and not individually or separately liable, in the absence of any express words to show that a distinct, as well as entire, liability was intended to fasten on the promisors,” furnishes the true test. And, in proceeding to show that this ease does notjiome within the rule just cited, he says ; “ What is the undertaking of these several parties?” and answers, “It is not for one and the same act.” This is the very point of the case. We answer to his inquiry, it is for one and the same act. The plaintiff, Stage, owes the Life and Trust Company $1500 ; Edson B. Olds covenants with Stage that he will pay this debt by a given day. That is the act to be done, according to his covenant. Now for what act did Joseph Olds, Thomas Huston, and Andrew Huston covenant ? One and the same, or another act?. Why the same, exactly. And they not only covenanted for the doing one and the same act, but that it should be done by the same person, viz ; Edson B. Olds. They covenant that he shall pay the same sum of money, to the same Life and Trust Company, on the same day on which he has covenanted to,, pay it. There is the most perfect and absolute identity throughout.
    But the learned counsel contends that the undertaking of Edson B. Olds is direct; that of the other parties collateral. His is unconditional ; their’s subject to a condition. This is exceedingly plausible, but a clear mistake as to the effect of the covenants. The covenants of all the parties are direct. It is the damages only for the breach that are conditional or collateral. They have all covenanted that Ed-son B. Olds shall pay the $1500 to the Life and Trust Company. He fails to pay it. What is the consequence of the breach as to him? Or, in other words, what can he be compelled to do because of the 164] *breach ? Not the direct act which he has covenanted to do ; not at all; the plaintiff can not compel him to that. But he must pay damages to the plaintiff equal to the injury sustained by the breach of his covenant. That is the judgment of the law upon him for his neglect. But when did the other parties break their covenant ? Exactly at the same time that Edson B. Olds broke his. What is the judgment of the law against them for the breach of their covenant ? Exactly the same as against Edson B. Olds. What, then, is to sever these covenants ? They were made by the same instrument, at the same time. They are for one and the same act. That which would be a performance as to one, would be so as to all. The same holds as to-the breaches ; and the consequences of a breach are precisely the same' to all.
    It is not necessary in order to make a covenant joint, that all the covenanters should agree to do, themselves, the act which is to be the performance : as if A, B, and C, bind themselves, by covenant, that C shall marry D, it is a joint covenant, though C only can perform it. So, in the ease of a common appeal bond, on which covenant lies as well as debt, the securities undertake for, and with, the principal, that he shall prosecute his appeal to effect. By the very nature of theumdertaking, even though the instrument contain no words fixing its character, the covenant is joint. Appropriate words may make it several, or joint and several.
    “ If several persons stipulate for the performance of an act, they are implicitly bound, jointly and not severally ; and there must be express words creating a several liability, in order to render them separately responsible.” Chitty on Contracts, 81.
    “ If two covenant, generally, for themselves, without any words of severance ; or, that they, or one of them, shall do such a thing, a joint charge is created.” Plat on Covenants, 117.
    In this covenant there are no such words. Edson B. Olds says, “ I hind myself.” The securities say, “ We bind ourselves,” No declaration of severance or unity, but the expressions are left to be explained by the character of the act to be done. If a note be drawn in 165] the singular, I promise, etc., *and two or more sign it, it is joint, or joint and several. The sum and substance of the matter is, that each signer, by the word I, referring to his signature, or, connected with it, undertakes, with all the others, whose names are signed to the same note, that he will pay, etc. In this case Edson B. Olds, who has signed above, covenants that he will pay. This objection is in the bark, and, as we suppose, not seriously, made.
    From the very nature of the covenant, we think that two several suits, one against the principal and one against his securities, could not be sustained. Having undertaken, by the same instrument, at the same time, for the performance of the same thing, the actual breach as to all being the same, the mode of assigning it the same against all, and there being no words of "severance, it seems to us that they must be sued jointly; and the more especially, as some of them are securities by the face of the paper, that they may avail themselves of the entry which the law allows for their benefit. But if this severance can take place into two groups, who can be sued severally, it does not follow that the whole covenant is not also joint, because the severance can not go further, and each individual be sued severally. There is no reason for this. The contract is joint, by the very essence of the covenant. Its form and language may make it, also, several; and, as it depends upon form and language, that may make it entirely several, 'as to all the persons executing, or so only between groups specially or substantially designated ; as if a joint and several covenant be executed by A, and, also, by B and C, as partners, A may be sued severally, and B and C jointly with each other. That joint interest between two of three several obligors, which might be thus implied from their relation to each other, may be also expressed in the form in which they unite in executing a covenant; and it does not, in either case, unless that be also expressed, affect the joint character of the whole covenant.
    The counsel also contends, as this is a covenant to indemnify the plaintiff against an existing debt, that no action accrues until the debt is paid by the plaintiff, or suit brought *against him — and he [166 takes a distinction: if a party, he says, covenant to indemnify another against a liability not in existence at the time of making the covenant, the breach consists in suffering the liability to arise, and for that the action may be sustained. “ But when one is already liable to suit it would seem absurd to suppose that the parties to a contract to indemnify meant to guard against and prevent such liability.”
    We recognize the distinction, in the general terms in which it is laid down, as a sound one. But here is a covenant to pay the debt on a particular day, or sooner, if required, and to indemnify, etc. Now tlie contract, in.the case put by the opposing counsel, by way of contrast, is, that the debt or liability shall never exist. In this ease, the contract is, that the debt or liability shall not exist after a day named. In the one ease it is conceded that the action arises if the debt ever come into existence; in the other, by parity of reasoning, the action must arise if the debt be in existence after the day fixed.
    On this point we refer to the case Exparte Negus, 7 Wend. 499, and Post v. Jackson, 17 Johns. 239, as directly in point, and conclusive íd our behalf.
    John L Green, in reply.
    Counsel for the plaintiff say that we have misapplied the rule, as quoted in the opening, from 1 Chitty’s Pleading, 47. They insist that the undertaking of these parties is for “ one and the same act.” It may be said that the acts to be done are the payment of the money, etc., and that all have stipulated that those things shall-be done. But how ? by whom ? in what order ? It certainly does not follow, because all have stipulated that the thing shall be done, that all are primarily liable if it is not done. Here are express words, showing a distinct and separate liability. “We promise, not that we will do, but that another shall do.” This is nothing more than a guaranty. The nature of such an undertaking is well understood ' It may be more or less extensive, but is a conditional undertaking. In Green v. Dodge and 167] Cogswell, 2 Ohio,*439, the court say, “ the guaranty of the defendants amounts to this — that the guarantors will pay, if the promisors do not; but this is, in its very nature, conditional.”
    The learned counsel admit that the position we assigned to these parties in the opening, that of the principal being a direct unconditional undertading — that of the securities collateral, conditional, is plausible; but they insist that we mistake the effect of this covenant. They say, “ it is the damages only for the breach that are conditional.” It seems to us that this is an attempt to escape from the question, by confounding the form and the consequences of the remedy. It is true, as counsel claim, that the court can not compel the principal to do the direct act which he has covenanted to do. Neither can they compel the securities to do the direct act they have covenanted to do. In other words, a court of law can not compel a specific performance of the covenant; they must adjudge damages for the breach, to the extent of the injury sustained by the plaintiff. This is the conse. quence of a breach of the covenant. We can perceive nothing conditional in this, further than it may be said, as in all cases, that the judgment of the law is conditional upon a breach of the law. The form of the procedure, by which this consequence may be attained, is quite a different matter. Because the judgment of the law may be the same against all the parties for a breach of the covenant, it does not follow that they may all be joined in one suit..
    The learned counsel have not thought proper to answer the argument urged by us in the opening, as to the effect of a release to these ■securities, in discharging the principal. We think it can not be •answered. It is the true test, whether the covenant be joint or not.
   Read, Judge.

The single question in this case, is, whether the defendants can be sued jointly.

When several persons execute an instrument, in parol or under seal, upon the same consideration, at the same time, and for the same purpose, and taking effect from a single delivery, they are, in legal effect, joint contractors or obligors. The *fact that some may have exe- [168 euted it as sureties does not affect the joint nature of the contract or obligation, but is mere evidence of the position of the makers among themselves, and protects the security in such advantage as the law bestows upon that relation. The particular form or manner in which the parties have affixed their signatures to a contract or bond is immaterial. It matters not whether those who execute as sureties sign their names directly under that of the principal, and then append to each name the fact of the signing merely as surety, or, whether, as in this instance, the sureties write between their names and that of the principals; that they sign as securities, and then affix signatures.

In the case of Hunt’s Administrator v. Adams, 5 Mass. 358, a note executed in the precise form of this bond was held, by Chief Justice Parsons, to be joint. In the case of Bright v. Carpenter and Shuer, 9 Ohio, 139, the principle is recognized, that it matters not on what part of a note a person may sign his name, if it be connected with the original execution, he may be treated as a maker. In Morris v. Bird, 11 Mass. 436, it is held, that if a person sign a note after its execution by the principal, if it was understood at the time of making the nóte that such person was to sign it, and the acceptance of the note was in consideration of such signing, he will be held as a joint maker.

The principle to be extracted from all the cases, is, that parties connected with the original execution and delivery of a bond, note, or other written instrument, are, in law, unless it be otherwise clearly expressed, joint makers or obligors

In the case under consideration, the bond was executed at the same time, upon the same consideration, and for the same purpose, and ■with one delivery. There is but one execution, a single covenant, and one entire breach. All covenanted to save Stage, harmless, from further claim from the Ohio Life Insurance and Trust Company. They united in the execution and delivery of the bond, and the law will not sever them in the breach, but hold them jointly responsible for its performance. The demurrer must be overruled.

Judgment for plaintiff.


source: Caselaw Access Project

author: *Read, Judge. Birchard, Judge,

license: Public Domain

text:
    *Samuel B. Harris and William H. Douglas v. John Carlisle and Andrew Carlisle.
    After a judgment creditor has filed his bill in chancery, to subject money or assets fraudulently assigned, the bail, on an appeal bond, may advance money upon the judgment, and, by agreement with his creditor, may prosecute the bill for his own indemnity.
    In such cases, the bail may disclose his interest by petition, or any convenient mode the court shall direct, and be let in to prosecute the bill to final decree.
    This is a Bill in Chancery, from Ross county.
    At the November term, 1821, of Ross county Common Pleas, Samuel B. Harris recovered a judgment against John Carlisle for $1700. From this judgment Carlisle appealed to the Supreme Court, and Wm. H. Douglas went his security on the appeal bond.
    On the 14th of December, 1822, Harris, on this appeal, got judgment, in the Supreme Court, against Carlisle for $1584.92 damages, $110.94 penalty, and 25.73 costs — in all, $1721.69.
    This judgment not being paid, Harris sued Douglas, on the bond, and on the 12th of March, 1824, recovered a judgment against him, for $1746.76, the amount due in equity, and costs. This suit was commenced September 30, 1824.
    On the 21st of July, 1823, before the suit was brought on the appeal bond, Douglas paid Harris $100.
    Both these judgments, as well that against Douglas, as that against Carlisle, being unpaid and unsatisfied, Harris, on the 21st of October, 1824, filed his bill in chancery against John Carlisle and his son, Andrew Carlisle, to reach certain property, charged to have been fraudulently transferred from John Carlisle to his son.

      On the 10th of November, 1824, pending this bill in chancery, Douglas, as security for Carlisle, paid Harris $1500.
    On the 22d of June, 1825, the bill in chancery, still pending, Doug•las made another payment of $299.86.
    *On the 10th of May, 1827, the bill still pending, he paid $15 [lift more.
    On the 9th of June, 1827, the bill in chancery was heard in the Common Pleas and dismissed. It was appealed to the Supreme Court, and on hearing in that court, Nov. term, 1829, the bill was there dismissed.
    On the 23d of November, 1832, a bill of review was filed, to reverse-the decree of the Supreme Court, and the same was reversed by the court in bank, in 1836 ; 7 Ohio, 144. -part II.
    The decree being reversed, the cause was reinstated on the docket of the Supreme Court for further proceedings.
    ' The first step in the ease, after this, seems to have been the taking of John Carlisle’s (a eodefendant) deposition. This deposition does not appear to have been taken by leave of the court; and by indorsement on the back of it, by the clerk, the deposition was excepted to,, and ruled out November 21, 1838.
    The next step in the case was the following document, filed November 23, 1839:
    “ Samuel B. Harris v. John Carlisle and another — Ross Supreme Court, in chancery ;
    “ Jacob Turney, assignee of the complainant in this case, by R. Douglas, his attorney, will exhibit to the court the evidence of the. assignment to him, and move the court to order the cause to stand dismissed. ‘
    “ R. Douglas, for Jacob Turney, assignee, etc.
    “ By H. H. Hunter.
    “November 23, 1839.’"
    This was on the 2d day of the term of the Supreme Court, in Ross county, 1839.
    On the 25th of the same month, two days afterwards, ffm. H. Douglas filed his affidavit, stating, in substance, that this bill is proseeuted for his benefit, as security of Carlisle ; that this was all along known and understood by the Carlisles ; that Harris’ proper assignee,, knew of the payments made by ^Douglas; that the paper pre- [HJ, sented to the court was not in Harris’ hand writing, etc. What was really done by the court on this state of things, does not appear from the minutes ; but they did not dismiss the bill.
    The next thing done was the filing what is called the “ amended answer of Andrew Carlisle,” January 28, 1840. "Whether this was ■done by leave of the court or not does not appear from the minutes. The paper itself says it was by leave.
    This answer sets out, that one G-eorge Wilkinson, of Rhode Island, was the real owner of the Harris judgment, and all the rights accruing thereon ; that on the 7th of January, 1839, Wilkinson, for $400, had assigned all his interest in said judgment, etc., to Jacob Turney, “ of the state of Ohiothat on 5th of October, 1839, Harris, the ■complainant, had ratified and confirmed the assignment to Jacob Turney; that the respondent, Andrew Carlisle, at the time Jacob Turney purchased said judgment, and ever since, was' “interested in said purchase ;” that he and Jacob Turney, by said purchase, acquired a right to control this suit, and that he had directed his counsel to dismiss the same ; and he prays the court now to dismiss it. With this answer are exhibited what purport to be the original transfers from Wilkinson and Harris to Jacob Turney. This answer was filed January 20, 1840.
    Thus stood the ease at November term, 1840; when, on the first •day of the term, November 30, 1840, a petition was filed in behalf of Douglas, setting out his interest in the judgment; that the 'original bill was filed at the instance and request of Douglas; also setting out the payments he had made, the principal one November 10, 1824, after the filing of the bill, and the residue afterwards ; that by such payment he became beneficially interested in said judgment, and had a right to prosecute this bill, and prays to be admitted and let in to prosecute this suit, and that he may be made a party. This petition 172] was filed November 30, 1840, and the defendants ^appeared to it by indorsement on the back of it, November 30, 1841.
    The next step, after filing this petition, was the taking of Mr. Atkinson’s deposition on the part of Douglas. It was taken November 8, 1841, and filed Nov. 12, 1841. After stating how and when he obtained the judgments, etc., as attorney of Harris, he says :
    “ That about that time, (the date of the judgment against Douglas,) or not long afterwards, said Douglas applied to me to know whether if he would pay me the amount of the said Harris’ claim or judgment against said John Carlisle, I would give him the control of the judgment. I agreed to do so. That said Douglas paid me the amount of said judgment against said Carlisle, in the course of the year 1824, as near as I can now recollect; $1500 of it was paid me, I believe, on the 10th of March, 1824 [10th of November, see his receipts] — some before that and the balance afterwards, as near as I can recollect. The whole amount, however, of the judgment was paid to me by said Douglas, and the same was duly paid over by me, less my fees, to said Harris, or his asssignee, or his administrator.”
    “ In October, 1824, I filed a bill in chancery, in the Common Pleas, or Supreme Court, of Ross county — in the former, I think — in the name of said Harris, against the defendants, John and Andrew Car-lisle, in order to secure the amount of said judgment against John Carlisle, and I continued to attend to it until I removed from Ohillicothe, in the spring of 1827; but I did it at the request, and as the attorney of said Douglas, and for his benefit, and at his expense, so far as my fees went.”
    On the 1st of March, 1842, the defendants filed their demurrer to-the petition of Douglas.
    At the November term of the Supreme Court, 1842, the cause came-on to be heard, and was reserved for decision on the circuit. A final decree was pronounced in Franklin county, January 3, 1843, in favor of complainant. In taking this decree, a manifest error intervened in the sum decreed, to be paid, and on the 23d of January, 1843, a rehearing was allowed ; *and so the case now stands before this [173 court, having been reserved to bank by. the last court in Ross county.
    H. H. Hunter, in support of the demurrer to the petition of William H. Douglas.
    The question now is, whether such a petition can be sustained upon any known rules,of chancery practice.
    If there are authorities, or any single dictum in any book of authority, to sustain it, they have wholly escaped my observation, after diligent search.
    There are authorities, well grounded, and necessary in the administration of justice in courts of equity, establishing that, in certain eases, a party interested in the subject of a bill in equity, may, by original bill, in the nature of a supplemental bill, entitle himself to the benefit of the proceeding.
    • There are also authorities, equally well grounded and necessary, establishing, that in another class of eases, a party interested in the' subject matter, though not a party to the record, may file a bill of revivor ; although the party thus filing may not be privy, by contract, •or in estate, with the original complainant.
    By one or the other of these two methods, only, according to the result of my investigations, can a stranger to the record (who does not, in some way, stand as the representative of a deceased or a bankrupt complainant) become a party complainant, or as quasi complainant, entitle himself to the benefits of a pending bill in equity,
    The doctrine on the subject of “ original bills in the nature of supplemental bills,” will be found in Story’s Equity Pleading, 278, sec. 345. The class of cases to which such bills belong, or in which they are appropriate, is indicated by the author in these words ; “ An original bill, in the nature of a supplementary bill, is properly applicable, when new parties, with new interests, arising from events since the institution of the suit, are brought before the court.” In the succeeding sections examples are given and the authorities referred to. The 174] same *subject is also treated of at page 139, sec. 144. From these references the doctrine may also be found in relation to supplemental bills, not original, filed by privies in estate, etc. We desire particularly to refer to sections 348, 349, 350, and 351, and the notes thereto, of the 2d edition of Judge Story’s work, above cited; also, to section 365. From these references, a correct idea of the whole doctrine on the subject of bringing parties before the court as complainants, not before parties to the record, will readily be attained.
    It fully and distinctly appears that the judgment at law in favor of Harris against Carlisle — to satisfy which, out of equitable assets in the hands of Andrew Carlisle, the bill was filed — was, in fact, paid off by Douglas, before the bill was filed.
    On this state of facts we maintain—
    First: That Harris could not sustain this bill for his own benefit.
    Second : That Harris could not sustain the bill for the benefit of Douglas; and,
    Third : That Douglas, in his own name, as complainant, could not Rave sustained a bill for similar purposes with that filed.
    1. The first of these propositions is self-evident.
    2. The second is equally clear — unless Douglas, on legal principles, by reason of having paid off the judgment, had the right to keep it on foot, as a subsisting judgment, and to have execution upon it, for his benefit, against Carlisle — not merely to render it available for the purpose of enforcing some lien of the judgment which would be lost, if the judgment were considered as satisfied, but generally, as a means by which to enforce repayment by Carlisle to him. For, unless Douglas, by reason of having paid off the judgment, had the right to keep it on foot as a means to coerce Carlisle to repay him, it being paid, as to Harris, would be so as to Douglas, also; and Harris, not having the right, in his own behalf, to file the bill to obtain satisfaction of it, could not file it to have satisfaction for the benefit of Douglas.
    *The bill which was filed did not purport in any way to be for [175 the use of Douglas ; but it imported directly the reverse. For, on its face, it expressly charged, that the judgment was in full force and unsatisfied ; was in the name of Harris, as complainant; and in every point of view, claimed the relief for Harris. Hence, as before remarked, an insurmountable difficulty in the way of a decree in favor of the complainant, arose, on proof being made by the deposition of Atkinson that Douglas had paid off the judgment before the bill was filed. Yet, in that deposition the fact is stated that the bill was filed, in fact, for the benefit of Douglas. This proof, however, not being within any issue in the case, was out of the case, and could not on any legal principle aid the party ; and was not by the court allowed to do so. Nor could the difficulty be relieved by amending the bill and charging that it was prosecuted for the use and benefit of Douglas. If that had been admissible, it would not have escaped the attention of the able and learned counsel, Mr. Leonard, who then managed the cause for the complainant. He doubtless saw, as all must see, that, to thus change the bill, would, in fact, be making an entirely new case, contradictory to that made in the bill; a thing never to be admitted by amendment, even between the same parties — much less, when the effect of the amendment would be to dispense with the complainant, and substitute in his place a new party, who, upon the state of the case, if true, as originally framed in the bill, could have no interest. .
    But if the bill had originally been framed in the name of Harris, for the use of Douglas, and had set forth that Douglas, as the security of John Carlisle, in the appeal bond, had paid off the judgment, it could not have been sustained for the purposes for which it was filed, to wit: to subject equitable assets in the hands of Andrew, belonging to John Carlisle, to refund to Douglas the money he had thus paid. Such a bill would be an anomaly. No decree could be rendered in favor of Harris ; for the record would show that he had no interest, not even as a trustee for Douglas; for the judgment being satisfied, as to him; it became a legal. nonentity, which he could not hold. 176] *as trustee or otherwise. Nor could any decree be rendered in-favor of Douglas, for he was not the complainant.
    3. The third proposition is, that Douglas, in his own name, as complainant, could not have sustained a bill for similar purposes with that filed.
    In considering this proposition, it is material to bear in mind its limitation, in regard to the objects of the bill, to wit: to subject equitable assets, belonging to the judgment debtor, in the hands of a third person; for instance, a debt, or a chose in action, or any thing else on which the judgment, before it was paid off by the security, did not operate as a lien.
    I admit that the law is well settled that, a security paying off a judgment which operates as a lien upon property of any kind, is, in equity, entitled to be subrogated to the rights of the judgment creditor, and may file his bill in equity for that purpose. Such is the law, generally, in relation to any security which the creditor holds for an indebtedness which a surety discharges in due course of law.
    But a surety who discharges the debt of his principal is not, in equity entitled to have the bond or judgment, or other mere evidence of the debt assigned to him. The authorities, both English and American, are full, clear and decisive, that a surety has no such right. And, upon reason and analogy, so the law must remain.
    This subject is fully examined, and the authorities collected and referred to in 1 Story’s Equity, 477, sec. 499, b. c. d.; and in the notes thereto, second edition.
    P. B. Wilcox, contra.
    The first thing to be noticed, is, the fact that the original bill in-this case was filed before Douglas, the security, made his payments to Harris. The bill was filed, October 21,1824. The petition charges the payments were made after that. Atkinson’s receipts show that to be the fact, except the payment of $100, which was made before suit brought against him. Atkinson’s deposition is loose on the point; but his receipts *show the exact dates ; and the defendant’s own [177 petition, for a rehearing, shows the very same thing. Any apparent discrepancies on this point, are all reconciled by supposing, what was, doubtless, the fact, that Douglas, after the judgment was rendered against him, and he found he had the money to pay, made the arrangement spoken of by Atkinson, as to filing the bill, though he did not actually pay the money till some time after the bill was filed. Mr. Leonard says, in the petition, that the bill was filed at the instance and request of Douglas. Atkinson says pretty much the same thing,, hut adds, that he did it “ in order, to secure the amount of said judgment against John Carlisle.” So that, in verity and truth, when this-original bill was filed, the judgment against John Carlisle was literally “ unpaid, unsatisfied, and unrevérsed ; ” and thus it fastened, forever, the equity that was in Andrew Carlisle. If Douglas had died insol - vent the next day, who will take it upon himself to say that Harris could not have prosecuted that bill to effect? There it was, in his own name, signed by his own attorney, and fastened on a good equity, in a fraudulent assignee. That it was done at the expense and instance-of Douglas, certainly can not vary the legal effect of it. Douglas’s promise to pay the money, did not put him under any greater obligations. There was a judgment already against him, and, as Atkinson says, the bill was filed in order to secure the debt.
    Here, then, is a judgment creditor, whose debt is secured on an equity, by a bill actually pending, and, also, by personal security. In this state of things, the security, pending the bill, steps forward and pays the debt. Then, what are the rights of the security ? Chancellor Kent says they are as follows — Hays v. Ward, 4 Johns. Ch. 130 : “ It is a settled principle in the English chancery, that a surety will be entitled to every remedy which the creditor has against the principal debtor, to enforce every security, and to stand in the place of the creditor, and have his securities transferred to him, and to avail himself of-those securities against the debtor. This right of the surety stands not upon the contract, but upon the same *principal of [178 natural justice upon which one surety is entitled to contribution from another.” 2 Ves. 622; 1 Dess, 409 ; 2 Mad. Ch. 437 ; 14 Ves. 162.
    It is the fact of payment that gives this right to the surety ; so that it is wholly immaterial what the understanding between Douglas and Atkinson was. The very moment Douglas paid Harris, that very moment the law clothed Douglas with all the rights specified in the passage quoted; and, stronger and more comprehensive language can not well be conceived of, or asked for. Douglas, therefore, is clothed with all the rights of Harris; and, among the rest, to prosecute this lien on the equity in Andrew Carlisle.
    Can Douglas, then, come in on petition, or is he put to an original or supplemental bill ?
    This, it seems, is matter of discretion with the court. A great variety of such cases is found in the English Practice. Eng. Draftsman, 502.

      The rule is thus laid down in New York : “ Whether a party is entitled to relief by petition, or must apply by bill, depends on circumstances, and the sound discretion of the chancellor. Where the petition is upon some collateral matter, which has reference to a suit in court, he may be relieved on petition.” 10 Johns. 517. The case was this ;
    Sands assigned a certain fund to P., in trust, to pay certain creditors, among whom was Gelston, a judgment creditor. Afterwards, the other creditors filed their bill, charging fraud in Sands, and also charging that Gelston had issued a ca. sa., and taken Sands upon it, and after-wards consented to his discharge. Gelston answered that he had issued a ca. sa., and had taken Sands upon it, but it was when Sands was a witness in the U. S. Court, and that court discharged him. The court held, that this was no satisfaction of the judgment, and dismissed the bill, as to Gelston, but decreed the assignment to P, by Sands, fraudulent, and ordered a sale, etc. Gelston then, being out of court, presented his petition to the chancellor, praying that he might be paid the amount of his judgment against Sands, which was a lien on 179] the fund, and the ^question was, whether he could be let in on petition, or must file his bill ? It was held, he might come in on petition. Is not this a stronger ease than the one now before the court ? Here, pending the bill, the security, as it were, under the very eye of the court, has paid up Harris, the complainant, and, by that payment, steps into the very shoes of Harris, and has a most perfect right to pursue this equitable lien against Andrew Carlisle. Had Douglas paid the money before the bill was filed, it would have made a different case ; but here the money is paid pending the bill, and to the very attorney who filed the bill; and nobody disputes the payment. And, certainly, in the general circumstances of the ease, and in the way this claim is sought to be defeated, there is nothing which should incline the court against the petitioner. He paid his money, in good faith, nearly twenty years ago, and he has been seeking it, in wain, through some two or three generations of lawyers.
    It is a little difficult to see the absolute necessity of having Douglas formally before the court at all. In a suit at law, on an instrument not negotiable, all the proceedings are in the name of the assignor; execution goes out in his name ; the money is brought into court in his name; and the assignee nowhere appears in the case, though he •is, in fact, the mover in every thing ; and the court of law will see that the money is really paid over to him. And even Judge Collet once said, if an assignor, in such a ease, undertook to interfere, he would lay him by the heels! Is not the chancellor’s arm as strong as that of a court of law ?
    If, after suit brought, on an instrument not negotiable, the plaintiff assigns his claim to a third person, a court of law will see that such assignee gets the money; and why may not the same rule hold good in equity, where the assignment is either by act of law, or act of the parties? Is it not the same thing as a fund in court, which the court, even on motion, will sometimes order to be paid. to the person it belongs to, much more on petition*.
    If a petition be not the proper remedy, the court, especially gs there is no settled practice among us, will give the party leave to put his case into the proper form.
    *Have the Carlisles a right to answer the petition ?
    It does not seem to me necessary, in this case, to go into the general inquiry, whether, in any case, a party 'can either demur, plead, or answer to a petition, i. e., to a mere petition. Admitting that a demurrer can properly be put in, then it is certain, if the court see that the' demurrer is a frivolous one, or put in for delay, or any other improper purpose, they will go right on, and render a final decree over ■the demurrer. Now, what is the case here ?
    The Carlisles have, themselves, in their petition for rehearing, told the court what their defence is, if their demurrer be overruled, and which, they say, they are advised, is a meritorious one.
    It is, that Andrew Carlisle is a bona fide purchaser of the Harris judgment, from Jacob Turney, for a valuable consideration, and without notice; and so they have a right to defeat the claim of Douglas, he not being a party to the record'when Jacob Turney bought the judgment from Harris.
    Now, in Andrew Carlisle’s amended answer, filed January 20, 1840, he says that, “ by understanding, between himself and said Turney, before and at the time said claim was purchased in, as aforesaid, from •said Wilkinson and Harris, he was, and still continues to be, interested in said purchase.” That is, they were in company, and, therefore, what Andrew Carlisle knew, Jacob Turney knew, and what Jacob Turney knew, Andrew Carlisle knew.
    Now, in 1826, when the original bill was pending, in Ross Common Pleas, this question was put, on the part of these same Carlisles, to John F. Woodside, whose deposition is in the record: “ Is not Wm. H. Douglas the owner of the judgment for which this suit is brought to collect?” Answer : “ I have understood that Wm. H. Douglas is the owner of the aforesaid judgment.” Now, it is true, this was nearly twenty years ago. R. Douglas, now the attorney for these-same defendants, was, in those early times, a master commissioner in this very case, and made two reports, as such, after this deposition 181] was on file ; and yet Andrew Carlisle is a bona fide ^purchaser-of his judgment, without notice of Wm. H. Douglas’ ownership. The truth seems to be, they have kept off this claim so long, it has gone-through so many ramifications, the record of the proceedings is so long, that, when they are at one end of the case, they forget what is at the-other.
    Most clearly, then, it seems to me, they can not be allowed to set up a defence shown in the very record, and out of their own mouths, to be untrue.
    Creighton, Green, and McClintock, submitted an elaborate argument upon the merits.
    T. Ewing, for defendants, in reply.
    On the state of facts made by the petition, the complainant in the original bill is not entitled to a decree. The debt is paid to him in full. He has no longer any interest, whatever, in the judgment which is made the basis of the suit in chancery. A decree, therefore, can not be pronounced for him, or in his name ; and, if there be any thing of the judgment remaining, on which a decree can ever be had, it is, so far as equity can view it, in a third person, Douglas, and he must become the actor, How is this to be done ? It has been attempted by petition. We contend that no one can make himself a party complainant to a proceeding in chancery by that mode.
    It is hard to prove a negative; but we hope to sustain our proposition by showing that the case does not fall within the general principles which admit of the filing of petitions in chancery, and by the-total absence of all authorities showing that it can be used to effect a purpose such as this.
    I have some objection to the rule given by Mr. Wilcox, for which-he quotes Codwise v. Gelston, 10 Johns. 517, namely, that it is a rule laid down by the reporter, not by the court, and not very accurately extracted from what was decided in the ease. Yeates, Justice, says in that case, Codwise v. Gelston, 520, that he “ can discover no reason-why this is not a proper subject of reference to a master. In the case 182] *cited from 2 Vesey, 571, 577, the court referred it to a master, to settle the priorities of creditors. The chancellor, therefore, ought to have proceeded on the petition,” That is, where it is a mere question of lien, arising from, and appearing upon, the record in the ease, so that a master can settle the rights of parties without evidence, a petition may be filed, instead of a bill. Chief Justice Kent, 330, says: “ It may be difficult to draw a precise line between cases, in which a party may be relieved upon petition, and in which he must apply, more formally, by bill Petitions are generally for things •which are matter of course, or upon some collateral matter, which has reference to a suit in court. The case before us was of the latter kind, as Grelston asked only to be paid the amount of moneys brought into court, and upon which he had a lien. G-elston was not a novis hospes. He had been before the court in the very cause, and his ease was well known, and the court had already declared that he was entitled to priority of satisfaction in preference to the general creditors.” And, again, 532, he says : “ But, as the applicant seeks by petition, only, and does not, by bill, bring in the other judgment creditors, the master must determine the priority of liens by the record; and he can not resort to proof aliunde, unless it be the voluntary confession of any other junior judgment creditor that his judgment is satisfied;” meaning, of course, a voluntary confession to the master, himself, in the execution of his reference.
    Now, this ease is brought forward alone, and singly, by very able and most indefatigable counsel, as authority, to sustain the proceeding, by petition, in the case at bar. I, therefore, conclude that it goes as far in that direction as any ease that can be found. The chancellor, who heard the case, was of opinion that the petition would not do in that case. But he was overruled, and, I think rightly, in the court of errors. And, what are the conditions which go, in this case, to sustain the petition, and excuse the filing of a bill, and making parties, who may contest the petitioner’s claim ?
    *First: Gelston, the petitioner, had, already, been a party to [183 the suit, and his rights were settled in a contest, inter parties, in the very ease. In the language of the Chief Justice, he was not a novis hospes, and, it is very clear, from his remarks, that he would not have admitted a. stranger guest at that private entrance.
    Second: The right of the petitioner was such that it could not be affected by. the conflicting claims of the other parties, as he claimed by judgment, having a lien, the place and priority of which was already settled by the court, leaving only calculations to be made by a master.

      Third : It was a matter collateral to the main case. The petitioner did not make himself a party to the pending bill, but came in for a fund, which must, from what already appeared, have been left in the hands of the master, for his benefit, even if he had not presented his petition. The dismissal of the bill did not dismiss the petition. It went for the fund in the' hands of the master, under the interlocutory decree.
    This is the case, in effect, stripped of all unimportant appendages: A mortgagee files a bill to sell the mortgaged premises. He.admits the existence of an older judgment, which, he avers, is satisfied; makes the judgment creditor a defendant, and prays that the judgment be canceled. The bill, as to the judgment creditor, is dismissed ; the mortgaged premises are ordered to be sold, and the judgment creditor comes into court, by petition, and prays that his judgment may be satisfied out of the fund in the hands of the master. He asks for a fund which is in court, and which the court have, in the very case, determined to be his. Now, if any evidence, dehors the record, is necessary, to sustain his claim, he can not, according to the opinion of Chief Justice Kent, come in by petition, but must file his bill, and make the proper parties to contest his claim.
    There is no case like this, in which a petition has been allowed to take the place of a bill. What is this case?
    A bill is filed by Harris, who is the only complainant. While it is 184] pending, facts are disclosed, which show that he *can not sustain his claim. He has no interest in the subject matter. His bill must be dismissed.
    Douglas, a stranger to the proceeding, files a petition, and prays to be made the party complainant to the bill, on alleged facts, set forth in his petition ; the very facts which show that Harris can not maintain the suit.
    Now, it requires no legal acumen to perceive, that Douglas, if he come in at all, becomes a direct party to the proceeding, or rather, the direct party complainant, for Harris is, properly, a defendant to the bill of Douglas, he, Harris, if the statement of the petition be true, ■having nothing whatever in the case. This petition, then, is not upon some collateral matter, according to the rule as laid down by Mr. Wilcox, but upon the direct matter in issue. The party, it is true, attempts to come in collaterally, that is, at a side door ; but, when in, he is, at once, the direct party, the master of the household.
    Again : This is not a matter that can be settled by the bare inspeetion of the record, or by calculation, merely, without evidence, ou reference to a master. It is a question between Harris and Douglas,, whether Douglas has paid off the judgment, and become entitled to-it. This can be decided, only, upon a direct issue, made in the case,, and on evidence to sustain it. A master can not, as in the case of Codwise v. G-elston, find it on an inspection of the record, “ without resort to proof aliunde.”
    But, if this petition be holden regular, what position does the petitioner hold with regard to the main case, and decree is to be rendered in it ? For this is not a petition for a thing " which is a matter of course,” as are the petitions in original cases to be found in the precedents. Upon its own showing, it has reference to a suit pending, in court.
    Again : It is not a petition by a party to the suit in court, for any order in the cause usually taken on petition, as an order to examine a, party as a witness, or a re hearing, or the like.
    *I suppose it is claimed to be upon a “ collateral matter, "which [185 has reference to the suit.” Now, lot us take this to be a collateral matter, which I think, clearly, it is not, and is it such matter as, presented collaterally, will enable the court to render a decree? If it be so, it can not affect the decree between the original parties ; hut the court must go, and render such a decree as they would have rendered, if the petition had not been filed. Then the petitioner comes in, under his petition, and asks for and takes such benefit of matters apparent on the record as, without contest,.- and without proof aliunde, he is clearly entitled to.
    If his proceeding be collateral, it must be supported by, and can not support, the direct proceeding. If the direct proceeding must, of itself, fail, the petition, which is to take advantage of something growing out of it, must fail also. But all purpose of this kind, is wide of the object of this petition. It shows a case which, if true, destroys the ease to which it is said to be collateral, and substitutes for it a new and perfect case in the petition. Now, it seems to me clear, that, if this substitution can take place at all, it must be by bill in chancery,, of the proper frame, with the proper parties, so that the facts, which are supposed to give the right, may be duly contested. It would be a wide departure from the symmetry of chancery proceedings. It would affect, not only the form's of procedure, but also the rights of parties, if this irregular paper should be permitted in this case ; or the court must also admit another irregularity, that is, allow the parties to come in and answer the petition as they would a bill, and introduce evidence to defeat and sustain it.
    It is, therefore, better to adhere to the law and the practice, as it is settled, and let the petitioner find the appropriate proceedings to set up and assert his rights. The counsel, who filed the petition, was a very able lawyer ; but the thing was, evidently, of the first impression, done in much haste, and without careful examination. Under such circumstances, the ablest and most skillful practitioners are liable to err.
   *Read, Judge.

Was it competent for Douglas to pay off the judgment recovered by Harris against Carlisle, and have this bill prosecuted for his benefit ? It is contended that the bill died when the judgment was paid, because its object was to produce that very result; so that nothing remained to Douglas but a money demand .against John Carlisle. If the bill fastened an equity in the hands of Andrew Carlisle, for the satisfaction of the judgment, it is consistent with the plainest rights of a surety, bound for the payment of the judgment, to claim that such equitable assets should be applied to the satisfaction of the judgment. Of this there would be no question, if Douglas had not himself paid the judgment. The principal is not altered since Douglas paid the judgment creditor, as bail, upon the the express condition that he should assume his rights, and hunt down the assets in the hands of Andrew, and be subrogated to the rights of Harris, the judgment creditor, to protect himself. This is all consistent with the plainest principles of equity.

But Carlisles, who had combined to defraud both the judgment creditor and their own bail, come into court and say that one Turney had bought of Harris this judgment, and would have the court summarily to dismiss the bill. The plain answer to this is, that Douglas has the elder and best equity, besides it has too strong an odor of contrivance and fraud to win upon the favor of a court of equity.

It is also said that Douglas is not properly before the court. That he should have come in by way of supplemental bill. If necessary, it would not be difficult to treat this in the light of a supplemental bill. But this is a point of practice upon which the court may exercise its discretion; and it appears not only unobjectionable, but, on the contrary, to be a very convenient form to obtain the object designed ; and from its simplicity and facility recommends itself to favor. A full equity then appearing for the complainant, and in the right form, the demurrer is overruled.

The next point is whether the court will permit the Carlisles to answer the petition of Douglas.

*In the first place, there is no affidavit' of merits ; and, sec- [187 ondly, the fact that this money should have been paid twenty years ago inclines the chancellor to refuse the leave.

As to the merits, Andrew Carlisle charges himself, in his answer, with upwards of $1100, and not having discharged himself by satis-faetory proof, we regard the case of Harris v. Carlisle, 7 Ohio, part II, 144, as settling this point. Having re-examined the evidence, we are still satisfied with that ease.

We do not say, in this case, that a supplemental bill would not have been a proper mode to present the interest of Douglas ; but any other mode which effects the same end, being a mere point of practice, •adopted and moulded by the chancellor to do complete equity between the parties, would not be disturbed. There must be a decree for com-plainant.

The following order was made :

“ This day came the parties, and submit this cause to the court, upon the respondent’s demurrer to the petition of the complainant, William H. Douglas, and the court, being advised in the premises, do find that the said demurrer is not well taken, and do order, adjudge, and decree the same to be overruled. And, thereupon, no good reason being shown to the court for any other or further answer on the part of said respondents, or either of them, this cause came on to be heard, on its merits, upon the several bills, answers, petitions, replications, exhibits and testimony, and the court, being fully advised in the premises, do find the equity of the ease to be with the complainants, and that said William H. Douglas is justly entitled to the amount paid by him to said Harris, or his attorney, with the lawful interest thereon from the time of the payment thereof. And, thereupon, the court do •order and decree that this cause stand referred to John W. Andrews, Esq., as a Special Master Commissioner, to ascertain and report, with all convenient speed, the amount due from said Andrew Carlisle, in conformity with the principles heretofore settled by this court in this ease, as reported in the 7th volume of the Ohio Reports, part II, *144,.with lawful interest; and that said Master also report the [188 amount of money paid by said William H. Douglas, on said judgments, to said Harris, or his attorney, with lawful interest thereon, allowing .credits, if any; that said master, in taking said account, do not take into consideration any deposition or depositions of the said John Car-lisle that may be on file, nor shall said Master take any other or further testimony in the ease. And all other questions are reserved till the coming in of the report.”

Upon the coming in of the Master’s report a final decree was entered for complainant.

Birchard, Judge,

dissenting. The original bill was filed by Harris, in 1824, setting forth that he recovered a judgment, in the Supreme Court, against John Carlisle, for $1,584.92, and for penalty and costs, which was in force, and seeking to charge the assets of John, in the hands of Andrew Carlisle.

Pending this proceeding, the Carlisles produce evidence, under an amended answer, that they had purchased and own the judgment. William H. Douglas then files a petition, setting forth, that the original bill was filed at his instance ; that he was security on the appeal bond of Harris, for the appeal of the suit in which the judgment set forth in the bill was rendered. That there was an understanding with Harris’ attorney that he should pay the amount of the judgment against Carlisle, and this suit was then to be prosecuted for his benefit. That, pursuant to the agreement, he paid the judgment, and has become beneficially interested in it,-and has the right to prosecute this suit for the assertion of his interest in said judgment. Prayer to be admitted so to prosecute and to be made party thereto.

To this petition there is a demurrer.

It raises, first, the question, whether the petition is sufficient, admitting that there is a right in equity, secured by the original bill, to which the security is entitled,

The general doctrine is, that if a person becomes entitled to the in-189] terest of a party, pending a suit, and wishes to prosecute *it, he must bring forward his claim by an original bill, in the nature of a supplemental bill. Story Eq. Pl. 348, sec. 286. The same author, 288, sec. 353, states what the bill must contain. It must state the original bill; the proceedings upon it; the event which has determined the interest of the former plaintiff, and the manner in which the party has become entitled. It must show the ground upon which the court ought to grant to him the benefit of the former suit, and pray a decree adapted to the case of the plaintiff in the new bill. If this be law, and I do not know that it has ever been questioned, it seems to me that this petition is defective and bad, upon demurrer.

In the first place, it prays no new decree whatever. The decree adapted to his case would seem to be a decree that the money to be-made should be applied in satisfaction of the payments made by him to Harris, on the judgment against Carlisle, as the security of Carlisle. The original decree prayed for the application of the money to the payment and satisfaction of the very judgment which the new petition shows to be already satisfied. The petition asks no new or different decree from the original bill. It merely prays leave to prosecute that suit to effect. It hardly lays the foundation for any decree whatever, while the facts set forth in it show that the general and particular relief prayed for by Harris should not be rendered.

In the second place, this petition does not state what was the original bill — what were the proceedings under it, and it may be doubted if it states a ground upon which the court ought to grant the relief which is now sought.

The equity which was attached in the hands of Andrew Carlisle, by the filing of the original bill, would not, in my opinion, survive the satisfaction of the judgment at law against John Carlisle, in aid of which that bill was filed; and. this petition shows that the judgment is satisfied.

Again : who are the parties to this petition ? What are the facts which they may take issue upon, were they to answer it ? How can Harris litigate and contest the claim set up by Douglas ? *He, [ISO or his assignee of the judgment, is not made defendant. The one is merely put aside — thrust out of the suit, on a motion entirely adverse to the claim, which, as appears from the papers, he had pertinaciously prosecuted near twenty years — and the other is not noticed. There are important facts to be determined before Douglas’ rights are established ; First : Was he a security on the appeal bond ? Second : Has he paid the money by reason of that liability ? Third : Had Harris received it before the transfer ? Fourth : Has it not been refunded,, in whole or part ? On these points Harris and Carlisle are entitled to be heard. If they see propfer to answer and deny these allegations, they have a right to require that their answers be disproved by more than one witness, before a decree be entered against them.

In expressing the opinion that the case made by the pleadings does not show ground for relief, I by no means wish to be understood that a case which would entitle Douglas to a decree against the Carlisles could not be made. It is unnecessary to go that far. The probabili-ties are, that a good ease could be made, and that the merits of it are met by the opinion of the majority of the court; my mind is brought to this conclusion, however, by the proofs, not by the pleadings. The .anomalous mode which has been adopted must tend to produoo results not uncommon at the time pleadings in short, at law, were tolerated, when it occasionally happened that the allegata were one thing, the probata another, and the adjudieata perhaps something compound of both, and corresponding with neither.


author: Wood, Judge.

text:
    *Heshbon Parish v. Loamma Rigdon.
    Under the general replication, de injuria, etc, in an action of trespass, where the defendant justifies under any authority from the plaintiff, or arising from the law, the plaintiff can not give in evidence any excess of authority.
    If he would rely upon such excess, he must reply it specially.
    This is a Writ of Error to the Supreme Court of Guernsey county.
    An action of trespass for assault and battery was brought by Rig--don against Parish, who plead the general issue, and also a special plea in bar, “ that he, the said defendant, at the time when, etc., was a schoolmaster, teaching a school at the county of Guernsey, and the said plaintiff was then and there a scholar in, and attending, said .school, and then and there behaved and conducted in an improper and •disorderly manner, and refused to obey the rules prescribed for the government of the school; whereupon, he, the said defendant, then and there, moderately corrected him the said plaintiff, for his said misbehavior, which,” etc.
    To this special plea the general replication, de injuria, was replied. The general issue was afterwards withdrawn; and, upon the trial, a bill of exceptions was taken, from which it appears—
    “ That, after the defendant had introduced proof, tending to sustain fully his justification, the plaintiff offered testimony to prove an excessive beating. To this testimony the defendant’s counsel objected, claiming that the testimony is inadmissible under the state of pleadings in this ease ; that if the plaintiff relied upon an excessive beating, he was bound to reply it specially, and can not prove such excess under the general replication, de injuria. The court being equally ■divided, the objection was overruled and the testimony went to the jury.”
    The admission of this evidence is assigned for error.

      *Isaac Parish, for plaintiff in error.
    In an action of trespass, when a justification sets up either matters of right or interest, or authority from the plaintiff, or by law, the plaintiff must reply specially, and can not, under the general replication, de injuria, give evidence of a new trespass, or excess. Opinion of Savage, Justice, in Griswold v. Sedgwick, 1 Wend. 130 ; 4 Wend. 577 ; Colburn v. Hopkins, 4 Johns. 157 ; 5 Johns. 114 ; 12 Johns. 491 ; 1 Chitty Pl. 581, 582, 584; 2 Chitty Pl. 642, note t, a ; Gale v. Dalrymple, Ryan and Moody, 118, in 21 Eng. Com. Law, 394 ; 3 Harrison’s Index, 2082, referring to 1 C. and P. 381, in 11 Eng. Com. Law.
    He also cited the following authorities . 4 Johns. 111 ; 5 Cowen, 181 ; 11 Eng. Com. Law, 433 ; 7 Eng. Com. Law, 74 ; 30 Eng. Com. Law, 388.
    The reporter was furnished with no argument for defendant in error.
   Wood, Judge.

The question raised on this record, is, whether, in this action of trespass, under the replication, de injuria sua propria absque tali causa, the plaintiff might rely upon, and give in evidence, an excessive beating.

It is said that the defendant, taking the affirmative, was bound to prove the truth of his plea, by showing that the correction was moderate, and that, to rebut this proof, evidence might be introduced to show that the beating was excessive. It appears to us of no very great importance which way the rule is established; but it should be settled and made known.

In Massachusetts it is held that such general replication is sufficient to let in proof of excess, and that it puts in issue every material allegation' of the plea, requiring the defendant to sustain, by proof, that he was a schoolmaster — that the plaintiff was his scholar — that he misbehaved, and that the correction was moderate. Bat the English and New York authorities are the other way. They show that when-the justification *sets up either matter of right, interest, or [193 authority from the plaintiff, or by law, the plaintiff must reply specially. He can not, under the general traverse, de injuria, give evidence of a new trespass, or excess of authority.

We feel disposed to go with this current of decisions. By thus settling the law the defendant will be apprised of the precise ground .on which the plaintiff relies ; and a single fací only will be submitted -to the jury. The plaintiff, by replying specially, may select the fact-■upon which he will take issue ; but he can present only one matter in his replication, and thus narrow down the ground of inquiry.

The evidence excepted to in this case was, therefore, improperly admitted.

Judgment reversed, and cause remanded.


author: Birchard, Judge.

text:
    John Henry v. Robert Conn and Others.
    The laches of a vendee will prevent a court of Equity from interfering to compel a specific performance in his favor.
    Where purchase money becomes due in the lifetime of the vendee,the infancy of his heir will not excuse delay in making payment so as to induce the court to decree performance against the vendor, after a great lapse of time.
    This is a Bill in Chancery, from Brown county,
    In 1817, the father of complainant and one Wiles contracted with Walter Baylor, to purchase 281 acres of land, then in the county of Adams. Baylor gave a title bond, obligating himself to convey by 'the first of May, 1818. A part of the purchase money was paid, and notes given for the residue. A division was made of the land, and Henry and Wiles each took possession of his share, and made some improvements thereon. ■ Some time after the money became due, Henry ■died, leaving the purchase money unpaid, and the complainant, then 194] an ^infant, his only heir at law. Baylor filed a bill to enforce his equitable lien for the purchase money, and the land was sold, under a decree of the court, to respondent, to whom Baylor afterwards conveyed the title, in 1822. To that proceeding, the present complainant was not a party. The proceedings were reversed in 1824. Wiles v. Baylor, 1 Ohio, 509. The complainant now seeks to have the share of his ancestor conveyed to him upon payment of his proportion of the purchase money, with interest, deducting rents and profits. The bill was filed, August, 1841, shortly after complainant attained the age of 21 years.
    The defendant, by his answer, puts in issue the material allegations of the bill, and insists that he is a bona fide purchaser for valuable ■consideration at a public sale, made by order of the court; that he paid the purchase money, and received the title under a judicial decree, and claims to be protected in his purchase. The answer also sets up a compromise between the defendant and the guardian of complainant, subsequent to the sale, and prior to the filing of this bill.
    The case was argued for the complainant by Marshall and Penn and John Jolote.
    Thomas L. Hamer, for defendants.
    The court having avoided the expression of an opinion upon the points chiefly discussed, the arguments are omitted.
   Birchard, Judge.

Several questions have been made in argument for complainant, which do not necessarily arise in the ease. As, whether the court had jurisdiction to decree a sale without service upon a minor defendant; and whether this claim may be barred by lapse of time ? To these points authorities have been cited ; but as the same questions arise directly in other eases now before us, it is better to waive the expression of an opinion until the questions are so presented as to render action necessary.

*In the view we take of this case, it is essentially a bill for the [195 specific performance of a contract against which time has run, if not as a bar, still so long as to change the entire equities of the parties, and to render it inequitable to enforce a specific execution, as" against either Baylor or his vendee. Instead of a prompt compliance on their part, the complainant and his ancestor lay by from 1818 to 1841, a period of twenty-three years, without an offer to complete the contract or tender of the purchase money. Under such circumstances chancery will not afford aid by decreeing a conveyance, but will leave the complainant to whatever remedy the law may give him.

The purchase money was due in the lifetime of his father, a circumstance sufficient to prevent the court from interfering, or allowing his infancy to vary the general features of the ease.

Bill dismissed.