
    
      John G. Pettus vs. Thomas Smith and others. Eliza Smith vs. John G. Pettus.
    
    A plaintiff in a judgment at law, seeking the aid of the Court of Equity, is not bound to show a fi. fa. issued on his judgment and returned nulla bona — a oa. sa. may be as well, if not better, adapted to show that the plaintiff could not have satisfaction by legal process, and that he needs the assistance of the Court of Equity.
    A plaintiff in a judgment at law having his debtor in custody under a ca. sa. may file a bill to have a previous conveyance by the debtor, and a previous judgment confessed by him, set aside for fraud.
    Every defence, such as fraud, &e., bearing upon the validity of a contract, is concluded by a judgment upon the contract — the creditors of the party defrauded have no right, (except where the fraud was perpetrated with an intent to affect creditors,) to question the validity of the contract, and the party defrauded is concluded by the judgment.
    A purchase made to enable a debtor to remove his property out of tho way of a coming judgment, is fraudulent.
    
      The assisting a debtor to remove his property from Florida to this State, and taking from him a confession of judgment here — the object being to defeat the lien of the judgment about to be obtained in Florida, and to obtain a preferable lien in this State, — is fraudulent.
    where a sale of negroes is set aside for actual fraud upon creditors, an expenditure made, such as paying a previous mortgage, for the purpose of forwarding the fraud, will not be reimbursed to the purchaser when the sale is set aside.
    Where a vendee, discovering a defect in his vendor’s title to part of the land, sues at law upon the contract and recovers judgment for, and collects the damages sustained, by reason of the defect, he thereby elects to treat the contract as valid, and cannot afterwards sustain a bill in equity to have it rescinded.
    
      Before JOHNSTON, Oh. at Abbeville, June, 1851.
    In November, 1845, John G. Pettus recovered judgment, in Florida, against Thomas Smith, for $4,278.78, with interest and costs ; and in October, 1848, recovered judgment in Abbeville district, in this State, on the Florida judgment. The Florida judgment was recovered on a promissory note, given by Smith to Pettus, for part of the purchase money of a tract of land. Pending the action, of Pettus against Smith in Florida, Smith removed his negroes, about thirty in number, across the line into Georgia, and there executed a bill of sale of the negroes to one Bryan; and Bryan advanced to him $5,000, out of which sum he satisfied a mortgage, for about $4,600, to one Bellamy, of part of said negroes. A few days afterwards Charles Smith, a brother of Thomas Smith, received from Bryan a bill of sale of the negroes, and paid him the $5,000 he had advanced to Thomas Smith, with interest.
    The negroes were brought by Charles and Thomas Smith into Abbeville district, in this State, where, on January 5, 1846, the said Thomas confessed to the said Charles a judgment for $3,121, with interest and costs; and also, in March, 1846, confessed another judgment to his mother, Lucy Smith, for $3,366.30, with interest and costs. The original indebtedness, on which each of these judgments was founded, was bona fide.
    
    On the South Carolina judgment, of Pettus against Smith, fi. fa. was lodged, October 23, 1848; and ea. sa. January 25,1849. Under tbe ca. sa. Smith was arrested .January 29, .1849 — gave bond for tbe prison bounds, filed a schedule, and gave notice that be would apply, at tbe next Fall Court for Abbeville, for tbe benefit of tbe insolvent debtor’s Act. He died two days before tbe sitting of tbe said Court.
    Tbe first bill, above stated, was filed April 26, 1849; its prayer was, that tbe sale of tbe negroes by Thomas Smith be set aside for fraud ^ also that tbe judgments confessed by him to Charles and Lucy Smith be set aside for tbe same cause.
    Tbe second bill, above stated, was a cross bill, filed February 21, 1851, by tbe administratrix*of Thomas Smith; its object was to procure a rescisión of tbe contract between Smith and Pettus in Florida, for tbe purchase of the land.
    JoHNSTON, Cb. I shall not attempt to state these cases, but shall proceed immediately to deliver my judgment, leaving tbe pleading! and tbe evidence, which is all in writing, or on my notes, to exhibit and explain tbe details of the litigation.
    In tbe first of tbe two cases, it appears that Pettus, on tbe 20th of November, 1845, obtained a judgment at law against Thomas Smith, in Florida, for $4,278.78, bearing interest from that date, with costs ; but could not obtain payment of it, because bis debtor bad, pendente lite, removed property, necessary for its satisfaction, beyond' tbe jurisdiction of tbe Court. He followed tbe debtor to South Carolina, and sued him upon bis Florida judgment ; and on tbe 23d of October, 1848, obtained a judgment upon it in tbe Court of Law for Abbeville district. But here be encountered new difficulties. Tbe property removed was now claimed by Charles Smith, a brother of tbe debtor, as a purchaser. This was one impediment. If, disregarding tbe pretended purchase, be proceeded to levy tbe execution be bad obtained here upon tbe property, be bad to encounter another impediment, consisting of two judgments confessed by Thomas Smith, which took legal precedence over bis to wit: a judgment confessed to Charles Smith tbe 6th of January, 1846, for $3,121, with interest and costs ; and a judgment confessed to Lucy Smith, tbe mother of his debtor, the 2d of March, 1846, for $3,666.30, with interest and costs.
    It is to set aside the pretended purchase of Charles, and to remove out of his way the two judgments of Charles and Lucy, that this bill is filed.
    Before we proceed to consider the validity of this purchase, and of the judgments of these parties, it is necessary to dispose of an objection interposed at the hearing, (for it was not taken in the answers,) to his general right to maintain his bill.
    Before the bill was filed, Pettus had arrested Thomas Smith, his debtor, by a ca. sa. taken out under the judgment recovered by him in South Carolina; and the defendant was in custody at the time the bill was filed. He had not taken out a fi. fa., or, if he had, it was not returned u nulla bona.”
    
    The objection is two fold :
    1. That a creditor coming here, for aid to enforce a legal demand, for which he has a judgment, properly operating at law, must show that he really needs the assistance of this Court; and that in this case, the plaintiff having omitted to take out a fi. fa., and causing it to be prosecuted and returned, has not shown that there was not a full remedy for him at law.
    I have an impression that some of the cases quoted in support of this objection were strained beyond principle. -The principle is sound, that a party holding a legal demand, and especially if he hold a legal remedy for it, is not entitled to call on this Court to aid him, unless he can show that he needs its assistance. He must state such a case ; and, if required, he must give reasonable proof of its existence. But a party undoubtedly does need equitable assistance, if his debtor is insolvent, except as to property so covered or encumbered that it cannot be reached without the intervention of this Court. The only question is, whether there is any principle restricting the proof of the insolvency to any particular method. Can it be proved only by the actual issuing and the actual return of process for the seizure and sale of property ? Suppose that, before a fi. fa. can be issued, or after the issue of a fi. fa. and before it is returnable, a fraud is discovered, consisting in a combination of third persons with tbe debtor, by which the property is secreted, and about to be removed out of reach, can no application be made to this Court until the fi. fa. is returned, and the fraud actually and perhaps irremediably completed ?
    The true doctrine, it appears to me, is, that the party ashing' the aid of equity, in such cases as this, is bound to show that, without fault on his part, and after the exercise by him of reasonable diligence, he has no means .of obtaining satisfaction of his claims without the aid of, this Court; and, as to the insolvency of his debtor, he is bound to make such proof only as, under the circumstances, is reasonable and satisfactory — such proof of insolvency as, in all other cases, is competent and satisfactory, and no more.
    >In this case a ca. sa. was as well adapted to test whether Thos. Smith was possessed of any property beyond that which he had conveyed away as a fi. fa.; and indeed better. Besides the ordinary information as to the existence of such property, as the sheriff or any friend of the plaintiff might happen to possess, it was calculated to draw on the conscience of the debtor for such additional information as he alone could afford. I am therefore of opinion’, that the deficiency of the plaintiff’s legal remedy, and his need for the interference of this Court, is made out in this case by even better and more satisfactory evidence than would have arisen, if a fi. fa. had been issued and returned, as required by the objection.
    
      2. The second branch of the objection is that the plaintiff’s legal demand, which is the only'just foundation of his application to this forum, was satisfied and extinguished at the time he filed his bill; and therefore he came here without cause.
    The argument is, that the debtor being under arrest at the filing of the-bill, his debt was at that juncture ,of time satisfied and extinguished ; so that no bill could be exhibited in that posture of affairs to enforce the payment of that debt.
    
      This Court looks at the substance of things, and not at mere forms and technicalities. It may be true, that if an action of debt had been brought, in a Court of Law, upon the judgment, while the debtor was incarcerated by virtue of process issued under it, the suit might have been stayed until the debtor should be released. But such order, or practice, if made or adopted, must be referred rather to the administrative than to the purely.-judicial functions of the Court.
    If the debtor made no objection on account of the arrest to the suit’s proceeding, the Court could not notice it, and the suit must proceed until the period of trial upon the merits arrived. Then, for the first time, the question now made before me — whether the arrest was a satisfaction of the debt — could possibly be presented for the decision of the Court.
    And I apprehend, a Law Court as well as this Court, must decide that question in the negative.
    An arrest is a merely conditional satisfaction. It is a satisfaction if it produces payment, or if the debtor be not released. At common law, if the debtor died in custody — that is to say, if the creditor never released him — the debt was extinguished. But if it were shown that the arrest terminated otherwise than by the death of the debtor in custody, and without a payment of the demand, it was not satisfied or extinguished.
    Arrests stand upon the same footing as levies upon property. While a levy is undisposed of, the debt is suspended. There is a qualified or conditional satisfaction; but where it is shown that the levy has not produced satisfaction, the creditor may proceed with his execution, or by suit upon his judgment, for what remains due to him. I have used the words satisfaction and conditional satisfaction in conformity to common usage; but the true view, upon principle, is that neither á levy nor an arrest has any direct influence upon the debt, so as to extinguish or satisfy it, either conditionally or unconditionally. It suspends the remedy, but the debt remains until actually satisfied.
    
      I must therefore overrule the objection, and proceed to consider the case before me upon its merits.
    And in adjudicating upon Pettus’ bill — which is the one I am now considering — I must regard his claim (now in judgment, both in Florida and in this State,) as a good legal demand, and as valid and effectual in law as any other legal claim.
    While the contract subsists, it is conclusive in law not only against Thomas Smith, the debtor, but against the other defendants to this suit, even though it should have the effect of diminishing their means of being paid as his creditors.
    Nor can either Thomas Smith, (now represented by his admin-istratrix,) or the other defendants, his creditors, under the bill which I am now considering, raise an objection out of equitable circumstances, connected with the purchase of lands, upon which the plaintiff’s demand arose, to prevent the enforcement of the demand itself.
    Any fraud that may have existed in the original contract, all oppression or usury, every thing bearing upon the validity of the contract — all these were as available in the Court of Law of Florida, where the contract was sued on, as they could have been in equity ; and the judgment of that Court concludes Thomas Smith upon all such points. As for his creditors, they never had the right to raise any objections of the sort. Picketss. Picket, 2 Hill, Ch. 471.
    Creditors of a party defrauded have no right — even though the fraud have the effect to diminish his means of paying them — to look into the fraud or unravel it. It is for him, and for him alone, to do so; and if he chooses to acquiesce in the fraud, or has suffered himself to be concluded of his right to investigate or undo it, his creditors must be content to abide by the legal rights remaining in him, as they happen to stand. In one case, and only one, that now occurs to me, has a creditor a right to ask redress in relation to' a fraud upon his debtor; and it is, where the fraud was perpetrated, not only with' the view of injuring the debtor, but also with an intent to affect the creditor himself; i. e. where the creditor was the object of the fraud. In that case, perhaps, as well as in the familiar case where the debtor colludes with a third person to defraud his creditor, the creditor has a right to claim redress. But with regard to frauds intended to light on the debtor alone, and when his creditors were not within the contemplation of the author of the wrong, and are only affected consequentially by it, society could not move on upon any principle that would allow them to interfere, forensically, in such cases. I ruled this doctrine in a case at Sumter, some years ago, (perhaps 1849,) between the Bank of Camden and Stuckey, and have seen no reason since to change my opinion.
    I am, then, no more at liberty, in this Court, where Pettus comes to enforce his judgment, to look behind it into the validity of the contract on which it was founded, than was the Law Court, in this State, when he sued before them upon his Florida judgment.
    Then, to take up the purchase set up by Charles Smith. Regarding this transaction in the abstract light of a mere purchase, and not, for the present, as a means afforded to clear out the property from Florida, and beyond the scope of Pettus’s approaching judgment, I can have no hesitation, under the evidence, to pronounce it colorable. Independently of the statute of Georgia, where the transaction took place, [See 2 Kelly R. 1,] the circumstances stated by the witnesses, and which I need not recapitulate, impress that character upon it. The witnesses are not impeached, and I have no official right to disregard their testimony; and, if that testimony be true, there can be but one opinion, it appears to me, upon the subject.
    But, if this were doubted, and even if it appeared that a real change of property was intended, still it is very plain, that the purchase was made to enable Thomas Smith to remove his property out of the way of the coming judgment. In such cases, it matters not whether a consideration, and even a full consideration, (Pinsonvs. Lowry, 2 Bailey Rep. 328,) was paid for the property or not. "Where there is prima facie evidence of lona fides, though a full consideration be not paid, tbat circumstance is immaterial, and cannot shake the contract, unless the consideration is so insufficient as to refute the prima facie evidence of fairness. {¡Ryan vs. Bull, Jamieson vs. Keitt, 3 Strob. Eq. 93.) And so, on the other hand, where there is evidence of intentional fraud, a party cannot rescue the transaction from its true character or its consequences, by paying a full price, though a full price, by itself, be good evidence of fairness.
    I held in Picket vs. Picket, (2 Hill Ch. 471,) that the assisting a debtor to remove his property, so as to obtain an advantage out of that property, was a fraud, relievable in this Court; and I held that the party should be deprived of the advantage he had obtained. The advantage acquired in that case was a preferable lien; just as in this case. And, if it be a fraud to remove property out of South Carolina, and subject it to a lien created to take priority of liens existing here, is it less a fraud to bring property from another State into this, with á similar purpose ?
    If the only wrong consisted in the colorable pruchase, a recent decision of the Court of Errors, [Johnston vs. Panic, 3 Strob. Eq. 330,) says that the only consequence of setting the purchase aside is, that the wrong-doer shall still be allowed to come in, with other creditors, with whatever demands he may have, (of course, according to priority of lien,) to be paid out of the property considered as the property of the original owner. I should be bound to apply the doctrine of that case to a similar case; and this would bo a similar case, so far as Charles Smith is concerned, if his whole offence consisted in taking a colorable conveyance.
    But', in my view, that was not 'the limit of his offence. It consisted in depriving Pettus of his lien in Florida, and bringing the property clandestinely within the scope of another and preferable lien of his own.
    Just as in Picket vs. Picket, this new lien did not exist at the time the property was translated. But the history of the events Satisfies me that it was in contemplation. If the colorable bill of sale would not suffice — if that was endangered — if the property should be challenged as really Thomas Smith’s — then, at the worst, it was to be made liable to Charles.
    Now, to such a case as that, I imagine the doctrine of the case to which I have referred, was never supposed by any person to be applicable. There is no way of undoing the fraud in such a case but by a decree that the lien, within the scope of which the property was improperly brought, shall be postponed. The very essence of the fraud is in the attempt to subject the property to that lien; and if, while you censure the fraud, your decree gives efficacy to the lien, it confirms and effectuates the wrong.
    I suppose, then, that the judgment confessed to Charles Smith should be postponed, until Pettus obtains satisfaction of his debt. And this opinion would not be altered by the admission made at the hearing, that that confession was taken for a debt really due to him.
    My decree would be different with respect to the judgment confessed to Lucy Smith. It is not only admitted that this confession was taken for a debt really due, but there is not a shadow of proof calculated to excite even a suspicion that either she or her agent — now her executor — had any connexion with the transfer of the property of Thomas from Florida to South Carolina. Aitken ads. Bird, (Bice Eq. 73.)
    I have thus indicated what would be my decree if the bill of Pettus were the only one before me.
    But, when I turn to the cross bill, I find a case which, in my judgment, totally supersedes such a decree.
    The case which it presents is shortly this : Thomas Smith purchased from Pettus, at the price of $10,500, a body of land, supposed to lie within the county of Jefferson, in Florida, to only a portion of which Pettus had an existing title. The purchaser paid two thousand dollars of the price in cash, and gave his three notes for the residue, which was $8,500, due in one, two and three years, and was let into the possession. By the contract, titles were not made, but Pettus was to perfect his title and make a conveyance.
    
      The valuable land, which wa-s the object of the purchase, lay towards the G-eorgia line. It turned out that it lay within the limits of Georgia, and she ran her State line so as to include it. Smith was evicted and lost the land; leaving in his hands a poor and comparatively worthless portion, lying in Florida. Pettus sued him on the notes- as they became due. Pie set up, by way of discount, the land which had been lost, and thus defeated'the two first notes. The last note was in suit, when Thomas Smith removed his negroes, (as has been stated,) tendered back the possession, and abandoned the land. On that note Pettus recovered his Florida judgment. Under it, he sold the land abandoned by Smith, purchased it himself, and is now in possession. It is with that judgment he has followed Smith, and obtained his judgment in Abbeville.
    The cross bill is filed for a rescisión of the contract. It is filed by the widow and administratrix of Thomas Smith. His other distributees are not parties.
    I have hesitated, not whether the contract should be rescinded, but whether the proper parties for a rescisión were before the Court. But my impression is, that as the title was never in Thomas Smith, and never descended to his distributees; and as the title for so much as Pettus ever owned, or could have conveyed, is still in him; there is no need for a re-conveyance on the part of the vendee or his heirs ; a rescisión may be decreed at the instance of the personal representative, who is competent to reclaim so much money as has been paid on the contract of purchase.
    On the merits of the application, I do not hesitate. Nothing adverse to the right of rescisión is concluded by the judgments. The judgment here only affirms that the judgment in Florida is a good legal judgment; not liable to any defence at law. It cannot be opened or re-examined upon any point of law; nor can . any matter, which could have been urged in a Court of Law, or noticed by a court of law, to prevent its being obtained, be now urged against it.
    It may be affirmed, in short, that no matter or question, of which Courts of Law have jurisdiction, can be now set up either against the Florida judgment, or that by which it was renewed in this State. All such matters and questions are covered and concluded by those judgments as res judicata.
    
    But no matter can be res judieata, or concluded as such, of which the Court from which the record comes has not jurisdiction or cognizance. Where there is no jurisdiction there can be no adjudication, express or implied.
    And this may be unhesitatingly affirmed of Courts of Law in relation to this question of rescisión. The Courts cannot have decided that the circumstances did not authorize a rescisión, or that the vendee had no right to one, because the question could not bo made before them.
    So far from the judgments of the Courts of Law in Florida having prejudiced this right, the right arises in consequence of their decisions, and is confirmed by them.
    It is by the solemn judgments of those Courts that we learn that the purchaser has lost, and been evicted from the real objects of his purchase. That is decided, and decided between these parties, and it is conclusive of the fact, as between them.
    This purchaser is not bound to abide by the remnant of his purchase.
    It is decreed that the contract of purchase of the said land, referred to in the pleadings, be set aside and rescinded; that John Gr. Pettus, the vendor, do account for such sums of money as he may have received upon said purchase, (with interest according to the laws of Florida;) and that the administratrix of Thomas Smith do account for the rents of said land while in his occupation; and that these two be set off, one against the other, and the balance struct and reported by the commissioner.
    It is ordered that the said John Gr. Pettus be restrained from enforcing his judgments, mentioned in the pleadings, until the further order of the Court, upon the coming in of the report, when a final decree may be proposed. The question of costs reserved until that decree is made.
    
      J. Gr. Pettus, complainant in tbe first and defendant in the second of the above cases, appealed from the decree of the Chancellor in said cases, and moved this Court for the reversal of the same and for a decree in his favor, upon the following grounds, to iyit: ■
    1. Because the Florida judgment was conclusive as to all matters embraced in complainant, Eliza Smith’s bill for relief.
    2. Because the agreement or contract between the parties has been executed, or so far executed and adjusted between them, that this Court cannot now consider and review the same for the purpose of rescisión, as the parties cannot now be placed in static quo.
    
    3. Because the agreement or contract has been affirmed by the complainant, Eliza Smith’s intestate, and no longer is open and subject to litigation in this Court.
    4. Because Thomas Smith, complainant’s intestate, by electing his remedy and his forum, and by other circumstances, has waived and lost his right to a rescisión of the contract, or to any other relief to be had in this Court.
    5. Because by laches and inequitable conduct, Thomas Smith,
    the intestate, deprived himself of the interposition and aid of this Court. ,
    6. Because complainant’s intestate, Thomas Smith, has been guilty of such fraudulent acts in conjunction with Charles Smith, as precludes his administratrix, the complainant, from obtaining relief in this Court by recision or otherwise.
    T. Because Charles Smith, substantially and in fact, being the party asking for the rescisión prayed, and who alone will be bene-fitted by it, and who is a fraudulent purchaser, colluding with the said Thomas in the fraud, this Court will not exert its ordinary or extraordinary powers in his behalf and for his benefit.
    8. Because there is no equity in complainant Eliza Smith’s bill, and the decree is generally against the principles of law and equity, as well as the testimony of the case.
    9. Because the Chancellor, in his decree, directs J. Gr. Pettus to account for tbe cash payment he received from Thomas Smith on the contract, with interest, while the administratrix of Thomas Smith is only required to account for the rents of the land while in his, Thomas Smith’s, occupation. Whereas, the decree should have directed, in the event of rescisión, not only that Pettus should account for the judgments he recovered against Thomas Smith, and the cash he received in payment on the contract, but that Eliza Smith, administratrix, should account for the judgment her intestate recovered from Pettus in the suit on the bond for titles, and also for the full value estimated at the time of purchase of the tract of pine land, containing 280 acres, to which Pettus made Smith good titles, and which was sold by the sheriff of Jefferson county, Florida, in 1846, to pay outstanding and older judgments than Pettus’ against the said Thomas Smith.
    
      Nolle, Thomson, for appellant.
    
      Perrin, McGrowen, contra.
   The opinion of the Court was delivered by

Johnston, Ch.

It appears that I overlooked a fact in. my circuit decree, upon which the whole case must turn.

I supposed that T. Smith had defended himself against the actions brought by Pettus. upon his two first notes, by setting up the value of the land which he lost, by way of discount. A fuller examination of the evidence shows that this was a mistake. When sued on the notes, he sued Pettus on the bond for titles; and obtained judgment for the value of the land taken off. This judgment exceeded the amount of the notes sued on ; and. after setting it off against the recovery of the notes, he compelled Pettus to pay the excess, amounting to about $2,500.

It appears to the Court this was an affirmance of his contract, and he was not at liberty afterwards to rescind it.

It is not necessary to multiply authorities on this point. The doctrine is well expressed in Brown vs. Witter, “A purchaser, from a vendor, who cannot make a title, has his choice of remedies. Pie may sue at law to recover damages for tbe nonperformance of the contract; or, he may, seek, in Chancery, a specific performance, as near as the vendor is capable of performing'; or he may rescind, by an action at law for the purchase money; or in a bill in equity. He cannot do both. He must select one of the alternatives, either to enforce or rescind.”

It appears to the Court that when- the vendee in this case discovered the defect in his vendor’s title, and his inability to make a good conveyance of that portion of the land which constituted the great object of his purchase, he.was then in a condition which enabled him to elect, and bound him to elect, either to enforce his contract or rescind it. He enforced it by claiming and collecting by process of law, damages in place of the land taken off; and retaining his conveyance of that which had been conveyed to him. Ey this means he obliged himself to take the vendor’s conveyance for such portion of the land not taken off as remained to be conveyed.

Besides, if he were not absolutely concluded by this election, the delay in demanding a recision even after he ivas sued in this State, would go very far to impair his right to such a decree.-

We are all of opinion that the decree made for a recision in this case should be set aside ; and it is so ordered and decreed.

We are satisfied that the decree which the Chancellor indicated, ■as the one he would have made hpon the bill of Pettus, if no cross-bill had been filed, is- the proper one.

It is said, however, that in setting aside Charles Smith’s purchase of the negroes, he should be allowed a lien for the amount paid on Bellamy’s mortgage. We are of opinion that though the purchase is good, as between Charles and Thomas Smith, and that therefore Charles will be entitled to claim that amount, and indeed the whole balance which may arise from the negroes, after payment of other debts; yet as between himself and the creditors suing him, he is not entitled ,to any reimbursement of the amount thus expended. This is ’not a constructive or implied fraud; but actual dolus malm. The sum was expended as a means of getting the property out of Florida, for the purpose of evading Pettus’ claim and obtaining a preferable lien; and certainly an expenditure for the purpose of forwarding a fraud, is not a suitable lien on the fund or property abstracted from the creditors defrauded.

It is ordered that the cross-bill be dismissed.

That the purchase by Charles Smith of the negroes mentioned in the pleadings in the other ease, be set aside, as against the creditors of Thomas Smith.

That Charles Smith deliver up such of said negroes, with their increase, as he has not alienated, to be sold by the commissioner; and that he account for their reasonable hire since his said purchase. That he also account for the value of such of the said negroes as he has alienated, with hire up to the time of alienation, and interest afterwards.

That out of said sales, hire and interest, the several judgments subsisting against Thomas Smith, be paid according to their legal priority, excepting that of Charles Smith, which must be postponed until the rest are satisfied.

.That said Charles Smith do pay the costs of the parties to the suit instituted by Pettus.

And that, if there remain any of the proceeds of said slaves, hire and interest, the same be paid to said Charles Smith.

Ordered that the matters of account be referred to the commissioner, with leave to report any special matter.

Also, ordered that the parties have leave to apply, at the foot of this decree, for any further orders that are or may become necessary in the case.

Dunkin', Dargan and Wardlaw, CO., concurred.

Decree reversed. 
      
      
         10 Ohio R. 142.
     