
    Meier & Co. et al. v. First National Bank et al.
    
      Co-partnership — Note signed by members creates partnership debt— Effect of judgment on such note — Preference among executions against same debtor — Section 5382, Rev. Stat. — Rule as to intervening liens.
    
    
      1. A promissory note signed by all the members of a co-partnership, when given for a consideration received by the firm, is as effectual to create a partnership debt as if signed in the firm name.
    2. The recovery of a judgment against the makers, on such a note, does not extinguish the partnership liability, nor exclude the creditor from participation in the distribution of the effects of the firm, in case of its insolvency, among the partnership creditors. <•
    
    
      3. Equity will look behind the form of a judgment, and inquire into the nature of the demand on which it is founded, and the relation of the parties, when necessary for the preservation of equitable rights.
    4. Thp provision of section 5382, of the Revised Statutes, which forbids preference among executions against the same debtor sued out during the term at which the judgment was rendered or within ten days thereafter, applies only to executions sued out on judgments of the same court.
    5. The rule of equality established by that provision is not dedefeated or affected by the intervention of another lien having legal priority over the judgments and executions that are subsequent to such lien; if the amount of money made is insufficient to satisfy all the executions, the whole amount applieable to each and all of them must, notwithstanding such intervening lien, be distributed to all the execution creditors, in proportion to the amounts of their respective demands.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Franklin county.
    The controversy in the courts below was over a fund arising from sales on executions of the property of George P. Stiles and Abram Stiles, brothers, who were clothing merchants, having a store in the village of Ashley, in Delaware county, where they carried on business as partners under the name of the “Ashley Clothing Company,” and another store in the village of Cardington, in Morrow county, where they carried on a like business under the partnership name of “The Carding-ton Clothing Company. ” Becoming involved and unable to meet their debts, judgments were obtained against them by a large number of their creditors, executions were issued on these judgments, and the fund in question is the proceeds of the sale of the property in the two stores, seized on these writs. The controversy relates to the order in which distribution shall be made of the fund among the creditors.- The first judgments obtained, were two recovered by the First National Bank of Cardington, in the court of common pleas of Ashland county, at its September term, 1893. They were so obtained on the 20th day of September, 1893, on notes signed by George P. Stiles, and Abram Stiles, with warrants of attorney attached, upon which the judgments were taken by confession. On the same day that these two judgments were recovered, executions were. issued on them to the sheriffs of Delaware and Morrow counties, respectively, who, on the same day, levied the writs on the stock of goods in their respective counties. These were the first levies on the property. On the next day, September 21, 1893, the same bank obtained two judgments in the court of common pleas of Franklin comrty, upon notes executed by George P. Stiles and Abram Stiles, and on that day caused executions issued on them to be levied on the same property; and on that day, Sperry & Wormstaff also recovered a judgment in the same court, against the /same defendants, on notes executed in the same way, and caused an execution issued thereon to be levied on the same property, on the same day. These three levies were the next in point of time. All of these judgments weie rendered against George P. Stiles and Abram Stiles, without any mention of a partnership existing between them, but upon indebtedness contracted in the business and for the benefit of the firm, and on its credit.
    On the 23rd day of September, 1893, in the court of common pleas of Ashland county, which was during its' September term of that year, other creditors who are plaintiffs in error here, recovered judgments against George P. Stiles and Abram Stiles, described as partners, and on the same day caused executions issued on their respective judgments to be levied on the same property that was taken on the executions issued on the judgments recovered in that court by the bank; and these levies were the next or third in point of time. These judgments of the plaintiffs in error exceed in the aggregate the sum of $7,000.00.
    Afterward, but still at the Septemer term, 1893, of the court of common pleas of Franklin county, others of the plaintiffs in error, creditors of the Stiles Brothers, recovered judgments in that court, and caused executions to be issued thereon and levied on the same property, during that term of the court. These were fourth in point of time, and amount to a large sum.
    The property was sold, producing a fund amounting to $6,996.27, which, by agreement of all parties, was paid over to the clerk of Franklin county for distribution, as might be ordered by the court. Whereupon the First National Bank of Cardington filed its petition in the court of common pleas of Franklin county, to marshal the liens, and bring about a distribution of the fund according to the rights of the parties, making all the creditors who caused executions to be levied on the property, parties to the action. The case went to the circuit court on appeal, and was there submitted upon an agreed statement of facts, which, so far as they are deemed material, are substantially as above set forth; and upon these facts that court ordered distribution to be made of the fund as follows:
    
      “First — To the payment of the costs of this suit, and the costs on the order of sale in the case of Oppenheimer, Strauss &Co., amounting to the sum of §372.46.
    
      “Second — To the plaintiff, the amount of its said four several judgments and • costs, amounting in the aggregate to the sum of $3,895.00.
    
      “TImxl — To Sperry & Wormstaff, the amount of their said judgment and costs, $566.50.
    
      “Fourth — That the balance of said fund, being found insufficient to pay the remaining judgments in full, be distributed pro rata among the defendants who recovered judgments in the Ashland common pleas, on the 22nd day of September, 1893, the said pro rata amounts being as follows, to wit: To Lewis Meier & Co., the sum of $66.26; E. B. Robbins & Co., $122.51; Garson, Meier & Co., $253.20; L. C. Wachsmuth & Co., $140.05; The Gem Shirt Co., $262.05; Bergunder Bros. & Co., $363.90; Legler, Barlow & Co., $68.94; Levy, Price & Co., $190.73; Michaels, Stern & Co., $315.26; Kahn Bros. & Fellheimer, $65.17; G. Sturm & Sons, $284.”
    The creditors who were given a pro rata share of only what remained after deducting the judgments of the Bank and of Sperry & Wormstaff, and the creditors who recovered judgments in the Franklin county common pleas and levied their executions at the same term, but on a day subsequent to the judgments recovered in that court by the Bank and Sperry & Wormstaff, being dissatisfied with the distribution as ordered by the circuit court, have brought the case on error to this court.
    
      Thomas H. Ricketts; T J. Keating and M. R. Patterson, for plaintiffs in error.
    The averments of the petition in question, that the firm names of the partnership were other than that designated in the notes, and in the judgments of the plaintiffs in error avail nothing. It is sufficient if the judgments were against all the partners, as such. The' firm name serves no purpose in pleading, except one of identity; and under special statutes, where suit is brought in the name of the firm', no doubt the correct firm name must be used. 1st Bates on Partnership, sections 191, 192, 193; Maxwell on Code Pleading, 269.
    The form of such judgments cannot be collaterally attacked. March v. Mead, 57 Iowa.
    The petition in question shows that the Carding-ton Bank and Sperry & Wormstaff took judgments on the notes as they appeared, against the individuals signing them. This they had a right to do. Section 4995, R. S., Ohio.
    Upon the showing made by the petition, these defendants in error might have obtained their respective judgments against the partnership. Bank v. Little, 4 C. C. R., 195; 1st Bates on Partnership, section 453a.
    
    Standing upon individual judgments, they sought by the petition, and were allowed by the circuit court, the privileges of partnership judgment creditors. These positions are inconsistent. 1st Bates on Partnership Id.
    
    The creditors of the members of the partnership, as individuals, can compel the partnership creditors to exhaust the partnership assets before sharing’ with them the individual' property. Rodgers v. Meranda, 7 Ohio St., 180.
    On the other hand the partnership creditors may enforce their claims against the property of the partnership regardless of individual creditors, or of their liens thereon. Page v. Thomas, 43 Ohio St., 38. The doctrine that an election between the inconsistent rights and 'remedies, when once made is Conclusive, is well settled and based upon sound principles of justice. Melick v. Darling, 11 Ohio, 343; Bradford v. Byer, 17 Ohio St., 388; Wilson v. Wilson, 30 Ohio St., 366; Bell v. McColluch, 31 Ohio St., 397; Martin v. Poney, 41 Ohio St., 143; Ferry v. Munger, 121 N. Y., 161; Fritz v. McGill, 31 Minn., 536; Bigelow on Estoppel, 632, 4th ed.
    The bringing of an action and taking judgments is an election. Emmitt v. Brophy, 42 Ohio St., 89.
    Any decisive act with knowledge is an election. Bigelow on Estoppel, 648.
    
      An election to pursue the individual members of a firm, by taking judgment against the individuals, upon a debt which might have been asserted against the partnership, is an election between inconsistent remedies, and is conclusive. 1st Bates on Partnership, section 453a; Bank v. Mitchell, 58 Cal., 42; Bank v. Sprague, 20 N. J. Eq., 13; Exparte Bank, etc., 70 Me., 369; Benson v. Ela, 35 N. H., 416; O’Bannon v. Miller, 4 Bush., Ky., 25.
    A promise by a partnership, and a promise by all the individual members collectively, do not have the same effect. Forsythe v. Woods, 11 Wall., 486; Bates on Partnership, section 170, 172.
    Reducing such promise of all the individuals to a judgment against all the individual’s of the firm, does not change the individual character of the debt. Pom. Code Rem., sections 406, 407.
    The circuit court ordered that the fund be applied, first in full payment of the executions levied on the 20th day of September; second, in full payment of the executions levied on the 21st day of September, and third, the residue to the pro rata payment of the executions levied on the 22d day of September. The plaintiffs in error contend that this order ’of distribution by priority of levy, was wrong, and in violation of section 5382, R. S., Ohio, and the decisions of this court on the subject. Babbit v. Morgan, 31 Ohio St., 273.
    
      W. G. Vccughan and Olds <& Olds, for The First National Bank, defendant in error.
    Judgments against all the members of a partnership as individuals, though not for a firm debt, has a priority over a judgment subsequently taken against the same as partners, and for a partnership debt as a lien upon the real property of the partnership. Davis v. Delaware & Hudson Canal Conypany, 4 American State Reports, 418; 109 N. Y., 47; Saunders v. Riley, 105 N. Y.
    Equity deals with the substance and not the shadow. We regard that doctrine as established in the case of Paige v. Thomas, 43 Ohio St., 38.
    A creditor of a partnership has no lien upon the partnership assets until he, by judgment, execution, mortgage, or in some way obtains a lien; the right to have the partnership property applied to the payment of the partnership debts is the right of the partner, and a creditor can only be subrogated to such rights as the partner has; now in this case judgments have been taken* upon the joint notes of all the partners for a partnership debt, and upon which judgments partnership property has been seized; neither of the partners could do anything after that to give other partnership creditors a priority over the bank; and what the partner could not do a creditor can not do. Saunders v. Riley, 12 North East. Rep., 170 (N. Y. Court of Appeals, March 8, 1887); Hanford et al., v. Prutley et al., 24 North East. Rep., 565.
    It is claimed by plaintiffs in error that the taking of the judgment against the individual members of the firm is an election to rely upon their individual property. That doctrine seems to us absurd, and the claim wholly without merit. It was conceded that neither of the partners had any individual property; no election can be had without an intent; the levy was made upon partnership property the same day the judgments were taken, which certainly shows a disposition to make the judgments out of the partnership property. That it is not an election, Trowbridge v. Cushman, 24 Pickering, 310; Goldsmith v. Eichold Brothers, 33 Am. St. Reps., 97. And that you may go behind the judgment and show the real facts that the judgment was a partnership, debt, to prevent the lien being postponed to other partnership debts. Picket et al. v. Fisher, 7 Cushing, 386; Lewis v. Anderson et al., 20 Ohio St., 281; Citizens' National Bank v. Johnston, 44 N. W. Rep., 551; Brinkerhoff v. Marvin et al., 5 Johns. Ch. Rep., 320. Note 1 to section 189, Bates on Partnership; Bates on Partnership, section 149, also section 536; Bates on Partnership, section 1053. The judgment against the ostensible partner alone binds the entire partnership interest; it is still a partnership debt, and éntitled to priority over separate creditors the same as if all the partners had been sued. Martin v. Davis, 21 Iowa, 535; Stevens v. Bank, 31 Barb., 290.
    The equitable rule which requires the assets of a firm to be first applied to the payment of the firm debts, and the individual assets to the payment of the individual debts of the partners, is founded, not. upon the equities of the creditors but upon the equities of the partners; each member of the firm has an equitable right to have partnership assets, in the first instance, applied to the satisfaction of partnership debts, so that his individual property may, so far as possible, be relieved from the burden of firm liabilities; so the members of the firm have each an equitable right to have the individual property of each partner first exhausted in satisfying his individual debts, so, as to exempt the joint estate so far as possible, from the seizure for individual debts; but firm credit-j ors whose debts have not been reduced to judgment have no specific lien, either legal or equitable, upon the property of either the firm or the individual partner; and their' right to have the firm assets so marshalled as to first satisfy their debts can only be worked out through the equities of the partners. Hanford v. Proutty, 24 North-east Reporter; Bates on Partnership, section 560; Pierman v. Koch et al., 1st Cincinnati Superior Court Rep., 460; McGregor, Adm'r, v. Ellis & Sturgess, 2 Disney, 286; Wilcox et al. v. Kellogg et al., 11 Ohio, page 394; Miller, Assignee, v. Estell et al., Ohio St., page 508; Coter Gin & Machine Co. v. Bannon, 4 Am. St. R., 803; Arnolds. Hagerman, 14 Am. St. R., 712; Baker v. Kinsey, 41 Ohio St., 403; Clark v. Rowling, 3 Comst., 216; Lindsey v. Jackson et al., 2 Paige’s Chancery Reports, 581; Wyman v. Mitchell, 1 Wendell, 316.
    Suppose either of these partners had been the owner of any separate property, and the bank had attempted to enforce its judgments against it, they could have been compelled to first exhaust the partnership property. Hundley v. Faris, 23 Am. St. Reports, 863; Rogers, Assignee, v. Meranda, 7 Ohio St., 179; Wilder v. Kelly, 3 Paige’s Chancery Reports, 167; Blair v. Black, 17 American Reports, page 30; McGregor v. Ellis & Sturgess, 2 Disney; Smead v. Lacey, Assignee, 1 Disney, 239; Gwin, Reid A Taylor v. Sedley, 5 Ohio St., 96; Sigler & Ritchey v. Knox County Bank, 8 Ohio St., 511; Wilcox v. Kellogg, 11 Ohio, 394.
    And as to the judgment of all the parties herein whose judgments describe the defendants, G. P. & A. H. Stiles, as partners, the notes were signed by George P. Stiles, with both individual names, adding the words “under the firm name of G. P. &A. H. Stiles,” and were so signed wholly without the authority and without the knowledge or consent of A. H. Stiles, and were as to A. H. Stiles, and the partnership, wholly void; the same are only binding-, and are judgments only against George P. Stiles, individually, and are entitled to the individual interest of George P. Stiles, only, in the partnership property ; one partner, by virtue of the partnership has not the power, and can only bind his copartner by the partnership name; he has no authority to sign the individual name of his co-partner without express authority, and cannot confess a judgment for his copartner, individually, without express authority; and to bind the firm on a contract it must be in the firm name, and in this case, the firm name was not G. P. & A. H. Stiles, but it was Cardington Clothing Company, and Ashley Clothing Company. Bates on Partnership, section 377; Freeman on Judgments, 4th edition, section 545 on page 940; Lindley on Partnership, star paging, 272, and note 8. Christy v. Sherman, 10 Iowa, 535; Eckuards v Pitzer, 12 Iowa, 607; North v. Mudge, 13 Iowa, 496.
    Upon the question of distribution we claim that this fund should be distributed in accordance with the provisions of section 5375, taken in connection with the provisions of section 5382. The defendants in this case claim that distribution should be made under section 5382; Wilcox v. May, 19 Ohio, 408; Derckson v. Reid, 2 Handy, 159; Waymire v. Staley, 3 Ohio, 366; Benedict v. Deckand, 1 Cleveland Rep., 83; Choteau v. Tompson, 2 Ohio St., 114; Brazee v. The Lancaster Bank, 14 Ohio, 318; Holliday v. Franklin Bank, 16 Ohio, 534; Babbit & Herman v. Morgan, Root & Co., 31 Ohio St., 273.
    
      
      Watson, Burr & Livesay, for The National Bank, defendant in error.
    The question of distribution at issue has not, so far as we have found, been directly decided by this court, so that whatever rule it now adopts in this particular case must serve for all similar cases, no matter what the amounts of the different executions may be, nor how long one execution is prior to another, provided they be issued at the same term.
    A pro rata distribution under certain circumstances is provided for by the statute, but “in all other cases the writ of execution first delivered to the officer shall be satisfied.” In no event did the legislature intend that a later creditor could have a priority over an earlier one.
    In no branch of the law has this maxim greater force or effect than in determining the respective rights of creditors in respect to priorities under levies of executions. Herman on Ex., p. 263; Kilby v. Haggan, 3 J. J. Marsh, 208.
    Moreover it is but sheer justice to give the preference to the creditor, who by his superior industry and vigilance shall have procured the first levy on the debtor’s estate. Smith v. Lind, 29 Ill., 24. Freeman on Executions, section 203.
    Where two .judgments or two executions have no priority over each other as liens, priority . may be gained by activity and diligence. Adams v. Dyer 8 Johns, 347 (S. C., 5 Am. Dec. 344, and eases cited in note).
    This inflexible rule of common law has been modified by our statute, section 5382, in case of two or more executions sued out during the judgment term or within ten days thereafter, and in case of two or more writs, coming into the hands of the officer on the same day, but in all other cases the rule of common law, re-enacted in the statute, applies. Wilcox v. May, 19 Ohio, 408; Patton v. Sheriff., 2 Ohio, 396.
    The question at bar had received some consideration by inferior courts in reported cases in Ohio.
    
      Derkson v. Reid 2, H., 159; Benedict v. Deckand, 1 Clev. Rep., 83.
    
      W. L. Menoine and Charles B. Bewdsley, for Sperry & Worm staff, defendants in error.
   Williams, C. J.

The plaintiffs in error contend that distribution according to the judgment of the circuit court is erroneous: (1) In directing payment of any part of the fund to the defendants in error, the First National Bank of Carding-ton, and Sperry and Wonnstaff; or if not to that extent, then (2) in awarding them the full amount of their judgments out of the fund in controversy.

1. It is contended that the above named defendants in error, are not entitled to any share of the fund, because the notes upon which their judgments were recovered were executed in the individual names of the makers, George P. Stiles and Abram Stiles, without subscribing the- firm name, or otherwise indicating the existence of any partnership relation between them, or intention to bind the firm; and the judgments were rendered in the same way; from which it is argued that these defendants in error must be treated as the individual creditors of George P. and Abram Stiles, and excluded from participation in the fund, under the familiar rule which gives firm creditors of an insolvent partnership priority, in the distribution of the firm, effects, over the individual creditors of its members. It is conceded, however, that the notes were given in partnership transactions, with the intention of binding the firm, and for considerations which went to its benefit; and it seems indisputable that they created partnership obligations. It is well settled that a partnership debt may be created by the execution of a note by all of the members of a firm, as fully as by one member subscribing the partnership name. Chitty on Bills, pp. 52, 53; Woolen Company v. Juillard, 75 N. Y., 535; Mix v. Shattuck, 50 Vt., 421; Austin v. Williams, 2 Ohio 61. The adoption of a firm name is largely for convenience in making contracts binding on all the members by its use, thus obviating the necessity of securing the individual assent of, and execution by each of the partners, which, when the members are numerous might not only be inconvenient, but sometimes impracticable.

But, it is contended that, as the individual ■creditors have priority of right to the individual property of the partners, as against the partnership creditors, the former cannot, at the same time, be allowed the advantages, of partnership creditors, and be thus enabled to share equally with creditors of both classes; and that by putting their notes in judgment against George P. Stiles and Abram Stiles, without any designation of their partnership character, or reference to their partnership relation, the Bank and Sperry & Wormstaff have conclusively elected to stand as individual, and not as partnership creditors. It is not claimed that they have sought satisfaction of their judgments out of any individual property of the partners, nor that there is, or was any property of that kind which could be reached. The judgments follow the notes, and rendering-judgments in that form did not extinguish the character of the notés as partnership obligations, nor defeat their legal effect as such. Courts of equity look behind the forms of judgments and inquire into the nature of the demands on which they are founded, and the relations of the parties, when necessary to the preservation of equitable rights; so that, if from the form of the notes as executed, a presumption should arise that they were intended to create an individual obligation of the makers, and nothing more, such presumption is not conclusive, but it may nevertheless be shown that they were in fact given for considerations which went to the use of the firm, and which were parted with on its credit, and thus show that they represent partnership debts; and there can be no reason why that may not be done after judgment rendered on them., as well as before, especially as against other creditors, in a proceeding in equity involving the right, as between the creditors, of participation in a fund produced by the partnership property. The rights of the creditors, on that state of facts, against the firm, are in no respect different from what they would be if the firm name were attached to the notes; and an execution upon the judgments must, therefore; be as available against the partnership property. Whether, if the members of this firm were possessed of individual estates which these defendants in error were endeavoring- to have applied to the satisfaction of their judgments, they would be denied participation in the partnership effects, or put to an election as to the fund they would pursue, is a question not presented; there is nothing in the case to indicate an intention on their part to seek satisfaction of their judgments out of any individual estate of either of the partners, or abandon any rights against the partnership effects; on the contrary, their proceedings on their judgments were promptly and exclusively against the partnership property, and on those of the Bank, prior in order of time to any lien acquired by any other creditor.

2. The -method of making- distribution among the execution creditors entitled to share in the fund is controlled by section 5382, of the Revised Statutes, which provides that:

“When two or more writs of execution against the same debtor are sued out during the term in which judgment was rendered, or within ten days thereafter, and when two or more writs of execution against the same debtor are delivered to the officer on the same day, no preference shall be given to either of such writs; but if a sufficient sum of money be not made to satisfy all executions, the amount shall be distributed to the several creditors in proportion to the amount of their respective demands; in all other cases the writ of execution first delivered to the officer shall be first satisfied; and the officer shall indorse on every writ of execution the time when he received the same; but nothing herein contained shall be so construed as to affect any preferable lien which a judgment on which execution issued has bn the lands of the judgment debtor.”

The general rule established by that section is, that as between execution levies, that of the writ first delivered to the officer shall have priority; and subsequent levies shall have precedence in the order in which the writs are received by the officer. This is in accordance with the general principle which accords the preference to the diligent creditor, over one less diligent. But to this general rule the statute has prescribed two qualifications; one is to the effect that there shall be no priority as between executions sued out during the term of the court in which the judgments are rendered or within ten days after the term; and the other applies the same rule of equality as between all executions that are delivered to the officer on the1 same day. The first of these qualifications governs the ease before us; and it is clear the equality of right as between the executions there referred to, relates to those issued on judgments rendered in the same court and at the same term. Executions issued from different courts, though on judgments rendered at the same time, and during corresponding terms, do not come within the provision, but take priority,as between each other, from the time of their delivery to the officer. But when several executions issued on judgments rendered in the same court and ■at the same term are delivered to the officer during-that term, or within ten days thereafter, they are, by the express terms of the statute, made equal in right, and that equality is not disturbed by the intervention between the judgments or levies of another lien which becomes superior to the judgments or levies that are subsequent thereto. The statue makes no exception to the rule it prescribes with respect to such executions, on account of intervening, liens, but includes all executions against the same debtor sued out and delivered to the officer at the term of the rendition of the judgment, or within the designated time thereafter; and in plain and unequivocal terms forbids any preference between them on any account, and distinctly requires that, if a sufficient amount is not made to satisfy all the writs, it shall be distributed to the execution creditors in proportion to the amounts of their several demands. When different creditors place executions in the hands of the officer on the same day, the last one doing so is not regarded as so lacking in diligence as to postpone his writ until the first one delivered to the officer shall be satisfied; and there is no manifest impropriety in extending the same rule of equality to creditors who recover judgments against the same debtor at the same term of court and cause executions to be issued thereon and levied during the term, or within a short time thereafter. A similar rule has been adopted by another provision of the statute which denies priority to liens obtained by filing transcripts of justices’ judgments with the clerk of the court during vacation, over judgments rendered at the next ensuing term. Revised Statutes, section 5377. Babbett v. Morgan, 31 Ohio St., 273. A like principle is also adopted in that provision of the statute which makes judgments recovered at the same term of the court equal as liens on the debtors real estate situated in the county where the judgment is rendered. The race between creditor’s generally begins with the apparent or actual insolvency of the debtor; and when several judgments are procured at the same term of the court, followed by executions, the insolvency of the debtor is usually obvious or rapidly approaching; and in such case, equality among creditors of equal merit works no injustice. But whatever may have been the reason for the adoption of the statutory provision under consideration, the courts are not at liberty to disregard it; and when applied to the case in hand, it requi res a distribution of the fund involved, different from that ordered by the judgment below. That distribution should be as follows: After the payment of the costs of the action in the courts below, and the costs of the sale, as ascertained by the circuit court, there should first be set aside out of the fund, the amount of the two executions issued on the judgments recovered by the Oardington Bank in the Ashland county common pleas on the 20th day of September, 1893; those executions being the first levied, and superior in right to the executions issued from Franklin county and levied the next day. Next, there should be deducted from the remainder of the fund, the amount of the executions issued on the judgments recovered by the Bank, and Sperry & WormstafE, in the Franklin county common pleas on the 21st day of September, 1893; they being superior in right to the executions sued out on the judgments rendered on the following day in the Ashland county common pleas, in favor of the plaintiffs in error. This amount should be set aside for distribution as hereafter directed. The balance of the fund then remaining being insufficient to satisfy the executions of the plaintiff in error, issued on their judgments recovered in the Ashland county common pleas, which are next in order of priority, must be added to the amount set aside for the two Ashland county executions of the Bank, and the aggregate amount they produce applied toward the satisfaction of all these Ashland county executions, in proportion to their respective amounts; and the amounts set aside for the Franklin county executions of the Bank and Sperry & WormstafE, must be distributed in like proportions among all the executions that were sued out on judgments rendered at the same term of the court of common pleas of that county, and levied during that term. This distribution is in accordance with the rule laid down in Babbitt v. Morgan, supra, and with a recent decision of this court in the unreported case of the Carriage Company v. Ford, from Licking county. The judgment of the circuit court must therefore be reversed, and judgment rendered for the plaintiffs in error, in accordance with this opinion.

Judgment accordingly.  