
    *John and G. R. Gilmore v. Miami Exporting Company and others.
    An execution upon the judgment at law, and a return that sufficient property could not he taken to satisfy the debt, is not indispensable to authorize a proceeding in chancery, under section 59 of the chancery law.
    Sale of lots for taxes void, where taxed as “part of a lot,” “ one acre of a lot.” Description too vague and indefinite.
    Tenants in common may make a joint demise.
    
      Prochein amie can not make a demise to sustain an action of ejectment.
    This cause was adjourned from the Supreme Court of Hamilton county. It was a bill in chancery, under section 59 of the statute regulating proceedings in chancery, to charge debts due from the other defendants to the Miami Exporting Company, with the payment of a judgment obtained by the complainants against the company. Upon one judgment no execution had been sued out; upon the other, execution had issued, was returned nulla bona, and levied upon real estate, which, upon a vendí, had been sold for a very small sum. No new ft. fa. had been taken. The bill did not charge that execution had been sued and returned, nothing to be found, and for this cause the respondents demurred.
    N. Wright, in support of the demurrer, contended:
    That the common doctrine in equity is, that the complainant must show in his bill that execution had issued and been returned, no property, before an application could be made in equity to aid an execution or obtain satisfaction of a judgment. He cited Coop. Eq. 149; 1 P. Wms. 445; Mit. Pl. 115; 1 Ver. 399; 2 Atk. 477; 3 Atk. 200; 1 Eq. Cas. 77; 4 Johns. Ch. 671; Id. 691; 20 Johns. 565.
    He further contended 'that the rule previously established was not changed by our statute. A rule settled is not changed by a change of phraseology in a subsequent statute. 2 Caine’s Cas. in Error, 150; 4 Johns. 359.
    The different statutes authorizing proceedings against banks, all concur in requiring that an execution shall issue and be returned, no property found, before chancery proceedings or attachment shall go against the credits of the bank.
    Section 59 should be construed in connection with the three preceding sections. They make provision for reaching, in equity, different species of property in aid of executions at law; and they require an execution to issue and be returned, as the foundation upon which to commence ^proceedings in equity. Section 59 merely extends the same remedy to creditors generally; and, although it does not in terms require that an execution should issue and be returned, that omission indicates no intention to introduce a new mode of proceeding.
    A process of this character is entitled to no favor or liberal construction ; it' is a high-handed interference between debtor and creditor, and opens the door for great abuses. 4 Mass. 121; 3 Id. 91.
    Storer, Caswell, and Hammond, for complainants, argued:
    That the rule in England and New York had no application in this state. That the cases cited were cases in which a court ot equity upon general principles, and upon rules prescribed by themselves, interfered to aid an execution at law. The doctrine maintained in the cases from P. Williams, Atkyn, Vernon, and Equity Cases, had been abandoned in England. 1 Anst. 381; 1 Ves. Jr. 196; 9 Ves. 189; 10 Ves. 366; 1 Hopk. Ch. 89. In Hadder v. Spade, 20 Johns. 575, Judge Platt admits that there is contrariety of decisions and dictas in the English court, and declares his unwillingness to go farther, as a chancellor, than to aid in reaching goods liable, in themselves, to the execution. >expressly disclaims a power to reach choses in action, because .1 had not been conferred upon courts of equity.
    The statute of Ohio gives a new remedy, and it presents the terms upon which it is given. It does not require that an execution should issue. But authorizes this bill in all cases where there is a judgment, and the defendant has not sufficient personal or real property which can be taken in execution to satisfy the same. He specifies the allegations to be made in the bill, and they are: that there is a judgment which the debtor has not sufficient real or personal property that can be taken in execution to satisfy, it is not a bill in aid of an execution at law, to subject to execution property liable to be taken and sold. On the contrary, it proceeds independent of an execution to subject debts and credits which could not be taken in execution. By the statute itself execution may be taken out pending the bill, if anything can be found to be taken upon it. The allegation ^required is not that there is no property, but that there is not sufficient. It is, therefore, in its character totally different from the cases cited for the demurrants. I
    The law gives a new remedy entirely, and prescribes the prerequisites. The Ohio statute is not additional legislation extending an existing provision. It is new altogether. No established rule existed in respect to it.
    If, by the phraseology of the preceding sections, an execution is required, the omission to require it in this is to be taken as a deliberate act, placing this subject upon distinct ground.
    The fact that the defendant in the judgment at law has not sufficient real or personal property upon which execution can be levied to pay the debt is one which may be controverted. The plaintiff files his bill at his peril. If, without a proper cause, he binds up his debtor’s credits by a bill of this nature, not only must his bill be dismissed, but he may be otherwise answerable. On the other hand, if the judgment creditor must wait until an execution is sued out and returned, the debtor may collect his debts, or place them beyond the reach of even this description of bill. To be effectual, the remedy should be free from the clog of a previous execution.
    Este, in reply,
    urged, that admitting this was a new proceeding, given by statute, and that without it chancery could only aid in execution at law, in cases of fraud or trust,' still chancery ought not to interfere without an execution had been issued, and returned that there was not property liable to be taken on execution to satisfy the debt. The law imposed two indispensable conditions: a judgment, and insufficiency of property. The court should receive no evidence of the latter but a return upon an execution. A- more rigorous execution ought not to be adopted where there was no imputation of dishonesty than in case of fraud. This kind of bill locks up all the debtor’s means. Its effect may be to prevent a disposition of property, or a collection of funds to pay the debt. The party resorting to it should be held to the strictest compliance with the statute.
   *The Court overruled the demurrer.

Judge Burnet

being a stockholder in the Miami Bank did not sit in the cause. Judge Sherman dissented. A majority of the judges not uniting in the opinion, no reasons were given. 
      
      Note by the Editor. — That execution need not issue before creditor’s bill will be entertained, see also vi. 227.
     