
    *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.  