
    J. and G. R. Gilmore v. The Miami Bank and others.
    Practice under section 59 of the act directing the mode of proceeding in chancery.
    This cause came before the court, by adjournment from the county of Hamilton. It was a bill in chancery, under section 59 of the law “directing the mode of proceeding in chancery.” The Miami Bank was the principal debtor, and the object of the bill was to subject certain debtors of the bank to the payment of the money due the complainants. Their whole claim, when the bill was filed, amounted to about thirteen thousand dollars. The aggregate of debts due to-the-bank from the debtors summoned amounted to about forty-five thousand dollars. W. H. Harrison made no objection to his liability. J. Burnet answered that, when served with process in 1824, he was indebted to the Miami Bank in the character of indorser; that the evidence of this debt had been long before pledged with the Bank of the United States as -collateral security, for the payment-of a debt due from the Miami Bank to that institution, and that in the month of March, 1825, he had paid the amount to the Bank of the United States.
    Hunt, Riddle, Piatt & Co. alleged that the debt due from them to the bank was paid in after bill filed by Martin Baum, a partner, not made defendant in the bill, and that consequently such, payment was available for them against the complainants. As the decree is only against the defendants here named, it is deemed unnecessary to notice the defenses of the other defendants.
    It was fully proved that the alleged payment from Martin Baum of the debt of Hunt, Riddle, Piatt & Co., was by a discount in the Miami Bank of his individual note, indorsed by other members of the company.
    *The cause was argued by Hammond and Storer, for complainant, and by Y. Worthington, for Burnet. No argument was submitted for the other defendants.
    The court ruled that when a creditor summoned the debtors of his debtor, to an excessive amount, the debtor should apply to the court to compel the complainant to select whom he would hold, and, in default of his making such selection, the court would assign who should be holden, and discharge the residue. That if no such application be made, all the defendants remain bound. That, if pending the suit, the summoned debtors make payment to the principal debtor, they must held liable to the complainant sub modo—he who last paid to be first liable. It was also held that Martin Baum, not being made a party to the suit, could not affect the rights of the complainants, unless the matter had been regularly pleaded in abatement of the suit. The decree entered was in the following form, which is inserted as a document which may be •useful to the profession, as a precedent, in future cases.
    “This cause came on to be heard upon the bill, answer and exhibits, and arguments of counsel, which being seen and heard, the court are of opinion that the complainants are the legal owners of the judgment in the bill mentioned, rendered in favor of Samuel •Sullivan, treasurer of the State of Ohio, against the president and directors of the Miami Exporting Company, and are entitled to recover of the defendants last named the sum now due thereon, amounting to twelve thousand five hundred and eighty-six dollars •and twenty-three cents, being the principal and interest due on said judgment up to the 18th day of December, instant. The court are also of opinion that the complainants are entitled to recover of the defendants, the president and directors of the Miami Exporting Company, the amount of the ju'dgment, rendered at March term, 1824, in the bill mentioned, which, with interest to the 18th of December, present, amounts to three thousand nine hundred and sixteen dollars and eighty cents—the aggregate thus due to the complainants from the said defendants, the president and directors of the Miami Exporting Company, being sixteen thousand five hundred and three dollars and seventy-three cents. The court *are further of opinion that the complainants are well entitled in equity, under the statute in that case made and provided, to have a decree and execution against the debtors of the said defendants, the president and directors of the Miami Exporting Company, parties to this suit^as is prayed in the complainants’ bill, and therefore the court proceed to decree, in respect to the other named defendants, as to the court here seems just" and according to equity. As to the defendant, George N. Hunt, it being suggested to the court, that he hath departed this life since the filing of the bill, and his representatives not being made parties to this cause, as to him it is considered to be abated. As to the defendants, Woodward and Stitt, the court are of opinion that there being a just judgment at law against them and their creditors, rendered before the commencement of this suit, for the debt due from them to the president and directors of the Miami Exporting Company, they can not be charged in this bill; the court do, therefore, award, order, and decree, that as to the said Woodward and Stitt, the bill be dismissed. As to the defendants, Jesse Hunt, Riddle, Longworth, Bechtle, Findlay, Spencer, Sloo, and the administrator’s of J. H. Piatt, it appears to the court that the defendants, Longworth, Bechtle, Findlay, Sloo, and the administrators of J. H. Piatt, are in default for answer, as to whom, the court proceed as upon their confession of the matter in the bill stated; but as it appears to the court, that the administrators of J. H. Piatt, deceased, can not properly be joined in a decree against the other defendants, partners in the firm of Hunt, Riddle, Piatt & Co., it is ordered, adjudged, and decreed, that as to the said administrators the bill be dismi ssed; and the court are further of opinion that the debt due from the defendants, the late firm of Hunt, Riddle, Piatt & Co., to the defendants, the president and directors of the Miami Exporting Company, at the time of the filing of this bill, is subject to the payment of the debt due the complainants as clai med by them. The court are further of opinion that the debts due from the defendants, Harrison and Burnet, to the president and directors of the Miami Exporting Company, at the time of filing the complainants’ bill, are subject and liable to the payment of the debt due the complainants as allowed by them; and by consent of the complainants, the bill, as to the defendants, *Green, and Guilford, and George W. Jones, is dismissed without prejudice.
    The defendant, Harrison, having failed to answer the complainants’ bill, it is ordered, adjudged, and decreed that, as to him, the bill be taken as confessed, and it appearing to the court, from the-testimony of Oliver M. Spencer, that on the 7th day of May last, there was due from the said Wm. H. Harrison to the president and directors of the Miami Exporting Company the sum of eleven thousand five hundred and fifty-five dollars, eight thousand dollars-whereof was principal debt, the additional interest upon which sum, to the 18th day of December instant, is two hundred and ninety dollars, the court do therefore award, order, and decree that the complainants recover of the defendant, Harrison, the sum of eleven thousand eight hundred and forty-five dollars, for the making of which, with interest, the said complainants shall have •execution against the said Harrison, as upon a judgment at law, that the amount, when paid, shall be credited upon the sum hereby together with the costs of execution ; and it is further ordered, decreed to be due to the complainants from the defendants, the president and directors of the Miami Exporting Company, and shall also constitute a credit in favor of said Harrison against the debt due from him to the said company. And it appearing to the court, from the testimony taken in the cause, that at the filing of this bill, the defendants, Hunt, Riddle, Piatt & Co., were indebted to the defendants, the president and directors of the Miami Exporting Company,- a ■ sum which, on May 1, 1826, amounted to nineteen thousand forty-seven dollars and twenty-eight cents, the court do award, order, and decree that the complainants recover of the defendants, Jesse Hunt, James Riddle, and Nicholas Longworth, Henry Bechtle, James Findlay, Oliver M. Spencer, and Thomas Sloo, Jr., the said sum of nineteen thousand forty-seven dollars and twenty-eight cents, for the making of which, with interest, the said complainants shall have execution against the said last-named defendants, as at law, together with the costs-of execution; and it is hereby ordered that, until the sheriff shall return upon the execution to be issued under this decree against the defendant Harrison, that he can find neither goods nor chattels, nor lands, whereof to levy the amount of said execution against said ^Harrison, the clerk shall indorse upon the execution against said defendants, Hunt, Riddle, Longworth, Bechtle, Findlay, Spencer, and Sloo, that it is to be levied only for the sum of four thousand six hundred and fifty-eight dollars and seventy-three cents, and interest thereon from the date of this decree, and cost of execution. But if, at any time, the sheriff shall return -upon the execution, against the defendant Harrison, that he can not find goods or lands whereof to levy, then no such indorsement shall be made, but the clerk shall indorse on said execution the amount actually due upon the entire decree hereby named, in favor of the complainants, and the sheriff shall levy such amount with interest and costs only. And it further appearing to the court, from the admission of the answer of the defendant, Jacob Burnet, that, at the filing of the bill in this cause, the said Burnet was indebted to the defendants, the president and directors of the Miami Ex■porting Company, a sum, which, on March 18, 1825, amounted to nine thousand eight hundred and six dollars, the court do award, order, and decree that the said complainants recover of the defendant Burnet the sum of nine thousand eight hundred and six dollars aforesaid, for the making of which, together with the costs ■of execution, the complainants shall have execution as upon a judgment at law, and it is hereby ordered, until the sheriff shall return upon the execution, to be issued under this decree against the defendants, Hunt, Eiddle, Longworth, Bechtle, Findlay, Spencer, and Sloo, that he can find neither goods nor lands whereof to levy the amount of said execution, no execution whatever shall be issued upon this decree against said Jacob Burnet, and after such return be made, if execution be issued against the said Burnet, the clerk shall indorse the sum remaining due to the complainants upon the entire decree hereby rendered in favor of the complainants, and the sheriff shall levy of the said Burnet such amount, with interest and costs of execution, and no more. And it is further ordered ■and decreed that the said sum of sixteen thousand five hundred and three dollars and seventy-three cents, with interest thereon when paid, whatever of the said defendants it may be levied, shall •be in satisfaction of the two judgments in the bill mentioned, and the court do further award, order, and decree that the complainants recover of the defendants, *the president and directors of the Miami Exporting Company, their costs in the prosecution of this suit expended. And it is further ordered that the clerk of •the Supreme Court for Hamilton county, upon receiving a transcript of this decree duly certified, enter the same upon his journal, and proceed, upon application of complainants, to issue executions as in this decree directed.
     