
    The Executors of James Findlay v. The Bank of the United States.
    Where the indemnity of a debtor is lost by the act of his creditor, the collection of the debt will not enforced.
    This is a bill in chancery from the county of Hamilton.
    Findlay, Davis, and Wheeler were securities for the Cincinnati Manufacturing Company, in a note to tho Bank of the'United 60] States, on which a judgment was rendered, in *the Circuit Court of the United States for the District of Ohio, in September, 1822, for the sum of $11,407. On this judgment execution was issued and levied on Findlay’s es.tate.
    To secure them against this responsibility, the Cincinnati Manufacturing Company, in October, 1820, gave a judgment to Findlay, Davis, and Wheeler, for the sum of $11,407.
    At the same term, a judgment was entered against the manufacturing company, in favor of the Miami Exporting Company, for $17,000.
    Át the next term, December, 1820, Lytle and Avery recovered a judgment against them for $49,645.
    Executions to collect these judgments were levied on the lands of the company.
    In November, 1823, Findlay, Davis, and Wheeler caused the lands of the company to be sold on their execution. The sale was confirmed, and a deed ordered, but not made.
    In 1826, the Bank of the United States acquired the rights of Lytle and Avery.
    On March 30, 1829, the parties were negotiating an arrangement, and a contract was drafted, purporting to be between the Bank of the United States on the one part, and Findlay, Davis, and Wheeler of the other, by which Findlay, Davis, and Wheeler transferred to the bank the judgment, with all its incidents, which they held against the manufacturing company, which assignment was accepted under the following conditions : that the bank was at liberty to use all efforts to show the lien of the judgment to be posterior to that imposed by the judgment of Lytle and Avery, but that if the lien of the Findlay, Davis, and Wheeler judgment was finally maintained, the assignment was accepted *as a satisfaction for the judgment held by the bank against Findlay, Davis, and Wheeler. This contract was signed by Davis and Wheeler, but not signed by Findlay. On the same day, Davis and Wheeler conveyed to the bank, by deed, the lands they had acquired by the judgment. On the same day, too, Davis made with the bank an arrangement, conditioned to be void, unless *Findlay acceded [61 to the contract just specified within one month. In the next July> the bank dispensed with that condition, and accepted from Davis an execution of his private arrangement, without exacting the assent of Findlay.
    At the August term, 1829, an order of court was made, purporting to be by the consent of parties, that the valuations and sales, made under the Findlay, Davis, and Wheeler judgment, the Lytle and Avery judgment, and a prior judgment of one Henry Hafer, should be set aside, and a new sale had, in divided parcels.
    This order was made upon an agreement of counsel, that the new sale should convey a valid title ; and that all questions concerning priorities of lien should be made in the appropriation of the money. These questions were finally settled in this court, in 4 Ohio, 457, and 5 Ohio, 333. By these adjudications the money was applied .upon the Lytle and Avery judgment, the court holding that under tho order of August term, 1829, the lien of Findlay, Davis, and Wheeler was postponed, because their judgment had become dormant.
    This bill was filed in 1838, praying the court to order the bank to credit its judgment against Findlay, Davis, and Wheeler with the amount of the judgment against the Cincinnati Manufacturing Company, assigned to the bank under the contract of March, 1829.
    The main point in the case was the question of fact, whether or not the Bank of the United States were equitable owners of the Findlay, Davis, and Wheeler judgment, and assented for them to the order of August term, 1829. This question was fully argued by N. Wright and Y. Worthington, for the plaintiffs, and by C. Fox and S. P. Chase, for the defendants.
    Mr. Wright
    cited 1 Story’s Eq. 480, sec. 502; Verplank v. Sterry, 12 Johns. 536 ; Lytle v. Cin. Man. Co., 4 Ohio, 459; Norton v. Beaver, 5 Ohio, 178 ; 1 Story’s Eq. 529, sec. 560, p. 595, sec. 642; Simpson v. Hart, 14 Johns. 63; Souverbye v. Ardon, 1 Johns. Ch. 251; 3 Dyer, 167, b ; 4 Cruise. Dig. 80, *sec. 80; 1 Shep. Touch. [62 57, 59; 4 Com. Dig. 273, Fait, A. 3; Wheelright v. Wheelright, 2 Mass. 447; Garnons v. Knight, 5 Barn. & Cress. 671; 12 Eng. Com. Law, 351; Moss v. Riddle, 5 Cranch, 351; Doe v. Howland, 8 Cowen, 284.
    Mr. Worthington
    cited these additional cases: Reily v. Mi. Ex. Co., 5 Ohio, 333; 1 Chit. Pl. 262; 3 Thos. Coke, 323; Walker v. Stokoe, 1 Ld. Raym. 151 ; Crawford v. Satchwell, 2 Strange, 1218; Dickenson v. Bowes, 16 East, 110; African Soc. v. Varick, 13 Johns. 38; Medway Man. Co. v. Adams, 10 Mass. 360 ; Southgate v. Montgomery, 1 Paige, 47 ; Jackson v. Wood, 3 Wend. 32 ; Smith v. Sherwood, 4 Conn. 276; Church v. Leavenworth, 4 Day, 274 ; Atwater v. Day, 4 Day, 431; Manny v. Harris, 2 Johns. 24; Brockway v. Kinney, 2 Johns. 210; Ogden v. Cowley, 2 Johns. 277; Outram v. Morewood, 3 East, 346; Wright v. Butler, 6 Wend. 288; Gardner v. Buckbee, 3 Cowen, 120; Buell v. Cook, 5 Conn. 208; Betts v. Starr, 5 Conn. 550; Hubbard v. Norton, 10 Conn. 433; 3 Thos. Coke, 431; Sintzenick v. Lucas, 1 Esp. 43; Wood v. Jackson, 8 Wend. 16 ; Lawrence v. Hunt, 10 Wend. 80 ; Etheridge v. Osborne, 12 Wend. 399; Wood v. Genett, 18 Wend. 117; Howland v. Ralph, 3 Johns. 20 ; Leyman v. Abeel, 16 Johns. 30 ; Phillips v. Berrick, 16 Johns. 136; Trevivan v. Lawrence, 1 Salk. 276; S. C., 2 Ld. Raym. 1036 ; 6 Tenn. 607; Bartholomew v. Candee, 14 Pick. 170; Critchfield v. Porter, 3 Ohio, 518; Reigal v. Wood, 1 Johns. Ch. 402; Barnesly v. Powell, 1 Ves. Sen. 120, 284, 289; Sholtenkirk v. Wheeler, 3 Johns. Ch. 275 ; De Riemer v. Cantillon, 4 Johns. Ch. 85; French v. Shotwell, 6 Johns. Ch. 235; 1 Story’s Eq. 179; Marine Ins. Co. v. Hodgson, 7 Cranch, 336; S. C., 2 Pet. Cond. 516; Ludlow v. Kidd, 4 Ohio, 244; Pawling v. United States, 4 Cranch, 219; S. C., 2 Pet. Cond. 92; Frost v. Beekman, 1 Johns. Ch. 288; Monroy v. Monroy, 1 Paige, 385; Jackson v. Richards, 6 Cowen, 617; Jackson v. Perkins, 2 Wend. 308; Jackson v. Leek, 12 Wend. 105 ; Mi. Ex. Co. v. Bank United States, Wright, 254; Union Bank v. Geary, 5 Pet. 112.
    *Mr. Fox
    cited Critchfield v. Porter, 3 Ohio, 518.
    Mr. Chase
    cited Mi. Ex. Co. v. Turpin, 3 Ohio, 514; Douglass v. Huston, 6 Ohio, 156; Reiley v. Mi. Ex. Co., 5 Ohio, 335.
   Lane, C. J.

The relief claimed in the present case depends on the position assumed *by the plaintiffs, that the Bank of the United States accepted the transfer of the Davis judgment, as made by Davis and Wheeler without Findlay, undertook its management as owners, and assented for them to the order of court, setting the sale aside, by which their priority was lost; that they are responsible for the loss arising from their mismanagement; that it is inequitable and unjust for the bank to enforce its judgment against Eindlay, Davis, and Wheeler, arising on a liability for the Cincinnati Manufacturing Company, and for which they were indemnified by the priority of their lien, when that priority has been lost by the acts of the agents of the bank.

The case has been discussed by counsel, in various points of view, and it is not necessary here to detail the testimony. , But we find, from proof, that it is altogether improbable that the consent, either of Findlay, Davis, or Wheeler, or of their counsel, was given to the setting aside the sale; that the order was made, either upon the bank’s assuming to give the assent of Findlay, Davis, and Wheeler, in the then existing relation between them, or that the assent was taken for granted, or inadvertently overlooked by the counsel for the bank and the. Miami Exporting Company. In either alternative, its consequences are equally disastrous to the holders of the lien; for without fault or negligence, they have lost the security, by which they would be protected from loss on their liability for the manufacturing company; and the money which ought to have extinguished their debt to the bank, is now held by the bank as a payment of another judgment.

The case, therefore, is resolved by the pripciple, that it is *uneonscientious for a creditor to enforce his debts against [64 a debtor whose security is impaired or destroyed by his act.

Decree for the plaintiffs.  