Rhonemus v. Corwin.

equity or good conscience to retain. If the plaintiff have merits, they are not disclosed by his petition. And it will be time enough to overrule or narrow the application of the doctrine in Witherow *v. Witherow, when a case is presented requiring such action [366 in furtherance of justice.

BRINKERHOFF, C. J., and SUTLIFF, PECK, and GHOLSON, JJ., con

curred.

JACOB RHONEMUS v. ROBERT G. CORWIN.

Where a decree in chancery, made by the Supreme Court of a county, under the constitution of 1802, for the sale of lands by the sheriff as upon executions at law, "upon receiving an order for that purpose," was remanded to the common pleas for execution; and thereupon the clerk of the common pleas issued merely a certified copy of the decree of the Supreme Court, and containing no description of the land, except by reference to other parts of the record, a sale thereupon made, though not void, was irregular and rightfully set aside.

IN error to the district court of Clinton county.

The case is, in substance, as follows:

The Supreme Court for Clinton county, in 1848, began on the 5th, and ended on the 6th, of June.

The next term, thereafter, of the common pleas, began July 18th. The Supreme Court, at that term, rendered a final decree in chancery between these parties in a certain suit there pending.

This decree found that Rhonemus had a valid lien on the lands described in the bill to the amount of $62; and, then, it proceeded to order Corwin to pay the $62, with interest and certain costs, into the hands of the clerk of the Supreme Court, for the use of Rhonemus, within thirty days from the rising of the court; and, then, it was "further ordered that, in default of said payment of said sum of $62 and costs aforesaid, that execution issue therefor as upon judgments at law; and that, in default of the *payment of [367 the said sum of $62, it is ordered and decreed that the sheriff of Clinton county, upon receiving an order for that purpose, proceed to sell, as upon judgments and executions at law, said land in said bill

Rhonemus v. Corwin.

described; and the court do order that on the payment of said money and costs in the court of common pleas, the injunction, heretofore granted, be dissolved," etc.

On the 5th of July, 1848, a mandate was issued from the Supreme Court to the court of common pleas, to "cause execution to be had of said decree of the said Supreme Court, according to law."

The mandate was deposited and filed in the common pleas, at July term, 1848, and execution awarded on the decree at the same term.

On the 29th of May, 1849, the clerk of the common pleas issued a certified copy of the decree of the Supreme Court, as remanded to the common pleas for execution; after his ordinary certificate, adding, he or somebody else, a description of the premises set out in the bill, and referred to in the decree, which description is neither signed nor certified by any one.

The sheriff received the copy of the decree the same day, and proceeded to make sale of the lands. The sale took place on the 7th of July, 1849.

On the 14th of September, 1852, a motion was made to confirm the sale.

This motion was continued, from time to time, until the 7th of April, 1855, when the court, finding that, by virtue of the order of the Supreme Court remanded to the common pleas, and a copy thereof duly certified and delivered by the clerk to the sheriff, the sale had, in all respects, been made, in conformity to law, confirmed the sale, and ordered a deed to be made. From this decree an appeal was taken. At the July term, 1856, of the district court, the case was heard, and a final decree entered finding the sale void, and setting the same aside, on the ground that no valid order had 368] been issued to the sheriff, and that the copy of the order, on which he made the sale, conferred no legal authority for that purpose.

The case is now in this court, to revise the decree of the district court, and reinstate the order of confirmation made by the common pleas.

P. B. Wilcox, for plaintiff in error.

Durbin Ward, Caleb B. Smith, and D. P. Lowe, for defendant in

error.

BRINKERHOFF, C. J. It will be noticed that this case came into the district court by appeal from an order of the common pleas, confirming a sale made in a chancery proceeding. Such an appeal might be taken. Hey v. Schooley, 7 Ohio (pt. 2), 48; Kern's Adm'r v. Foster, 16 Ohio, 276. The order of confirmation made by the common pleas being vacated by the appeal, the cross-motions, to confirm the sale on the one hand, and to set it aside on the other, stood as original motions in the district court; and the question was, not whether the sale was void, but simply, whether it was regular. We do not think it was void; but if it was irregular simply, the district court was warranted in setting it aside, and its order ought not to be reversed. Was it regular? By the terms of the decree of the Supreme Court, the sheriff was authorized to make sale only "upon receiving an order for that purpose." An order from whom? From the common pleas, obviously, for to that court the decree was sent by mandate for execution; and it was for that court to pass upon the regularity of the sale. But no order of sale was issued from the common pleas. There was a certified copy merely of the decree of the Supreme Court, made out by the clerk of the common pleas. It was directed to nobody; it ordered nothing; it did not even describe the premises to be sold. It had none of the requisites of a writ, as prescribed by law; and had the sheriff neglected to sell, he would not have been liable [369 either to amercement or to the attachment for contempt. For aught that appears in the record, it may have been made out merely to be used in evidence or as a muniment of title. We think the sale was irregular, and was properly set aside. Decree affirmed.

SCOTT, SUTLIFF, and GHOLSON, JJ., concurred.
PECK, J., was absent.

JOHN ROSSMAN v. NOAH C. MCFARLAND.

In 1842, the Bank of Hamilton assigned all its effects to three trustees, McC., M., and C., among which was a joint and several note of McC. & J. as principals, and R. as surety, for $900. After its maturity, the makers gave

Rossman v. McFarland.

a new note of like character, and by way of renewal, to assignees, at ninety days. The last note was not paid at maturity, and was retained by the assignees for several years, during which period the principals became insolvent. The assignees then transferred it to F., for collection merely. F. brought suit thereon against R., and on the trial R. offered to prove that the bank made the assignment with intent to prevent the bank commissioners from closing up its affairs, under the acts of February 25, 1839, and March 23, 1840, which testimony was ruled out by the court. Held1. That such proof was properly excluded by the court.

2. That an action might be maintained on said note, in the names of the assignees, against R., although one of them was also a maker of the note. 3. That there was no such suspension of a right of action upon the note in the hands of the assignees as authorizes the court to hold the note assets in the hands of the trustees, or either of them.

The case of Bigelow v. Bigelow, 4 Ohio, 138, does not apply to cases of joint and several notes, where only one of the makers becomes trustee to a payee.

IN error to the district court of Butler county.

This suit was brought in the court of common pleas of Butler 370] *county, to recover judgment against John Rossman, upon a promissory note which reads thus:

"$900.00.

HAMILTON, March 8, 1842. "Ninety days after date, we, or either of us, promise to pay to the order of the assignees of the Bank of Hamilton, at their office in Hamilton, nine hundred dollars, for value received. "MCCLEARY & JOHNSON, "JOHN ROSSMAN, security."

The plaintiff declared specially on the note, and added the common counts. Plea—the general issue.

The cause was appealed to the district court, which on submission, a jury being waived, rendered a finding and judgment in favor of the plaintiff.

During the trial, a bill of exceptions was taken to the finding and rulings of the court, from which it appears that in February, 1842, the Bank of Hamilton made an assignment of its effects to Andrew McCleary, John M. Millikin, and Jesse Corwin, as its general assignees. Among the effects thus assigned was a note made by McCleary & Johnson, as principals, and John Rossman, the plaintiff in error, as surety. On the 8th of March, 1842, this note was renewed by a note for nine hundred dollars, payable at ninety days, made by McCleary & Johnson, as principals, and plaintiff in error

Rossman v. McFarland.

as surety, payable "to the order of the assignees of the Bank of Hamilton." This note remained in the actual possession of the assignees from its date until the year 1852, when, without consideration, and merely for the purpose of collection, it was, by said assignees, assigned to N. C. McFarland, the defendant in error. McFarland brought suit against Rossman upon the note, in the court of common pleas. Judgment was given in favor of Rossman, and McFarland appealed to the district court, where judgment was rendered against Rossman for the balance due upon the note. *The suit was brought for the sole benefit of the assignees. [371 The firm of McCleary & Johnson, the principals in said note, was composed of Andrew McCleary and Samuel Johnson. McCleary was also one of the assignees of the bank. McCleary and Johnson were both persons in good credit, and amply able to pay the note, from 1842, when the note was given, until 1846, when they both became, and have since remained, insolvent.

Rossman offered to prove that the assignment so made by the Bank of Hamilton to its assignees, was made with intent to prevent said banking institution from being closed up by the bank commissioners of the State of Ohio, under the act entitled "an act providing for the appointment of a board of bank commissioners, and for the regulation of banks within the State of Ohio," passed February 25, 1839, and the act amendatory thereto, passed March 23, 1840. This evidence having been objected to by defendant in error, the objection was sustained.

A motion for a new trial was made in the district court, by the plaintiff in error, which was overruled.

To reverse said judgment of the district court, this petition in error was filed.

The plaintiff in error now claims that the district court erred in sustaining the objection to the evidence, and in not treating the note, under the evidence, as paid.

James Clark and Thomas Millikin, for plaintiff in error, insisted: 1. The district court erred in refusing to receive evidence that the general assignment made by the Bank of Hamilton was made in fraud and in violation of the act providing for the appointment of bank commissioners, etc. Swan's Stat. (1841) 133, sec. 20. The evidence was offered for the purpose of defeating the title of the defendant in error to the note. The statute expressly declares