Wright v. Fitzgerald.

which he applied and indorsed the money so paid in satisfaction, whereby the judgment was satisfied.

To the answers of Skinner and Fitzgerald, Wright replied as follows: Admits the payment by Fitzgerald to Skinner, November 11, 1858, in full of the judgment, and that Skinner gave a receipt in the following words:

"John Richardson

v.

James Grace.

Court of Common Pleas of Perry County,

Ohio.

"Received of James Grace, by Michael Fitzgerald, two hundred and forty dollars and ninety-two cents, in full of the above judgment. November 11, 1858. N. SKINNER.'

But avers that then Skinner had no writ in his hands; that afterward, on November 23, 1858, Richardson procured an order of sale to be issued to Skinner, who, while he had such order, gave another receipt to Fitzgerald in the following words:

"John Richardson

V.

James Grace.

Court of Common Pleas of Perry County,
Ohio.

"Received of James Grace, by the hands of Michael Fitzgarls, 638] the sum of two hundred and forty-five dollars ninety *cents ($245.90), in full satisfaction of the judgment and costs in the above December 22, 1858. N. SKINNER."

case.

And that Skinner indorsed on the order of sale that he had received the full amount thereof and costs. That Skinner did not receive any other or further sum of money than the amount paid to him by Fitzgerald, November 11, 1858; and that he failed and neglected to execute and return the writ.

To this reply Fitzgerald demurred.

The court sustained the demurrer and dismissed the action.

To reverse this judgment, Wright filed his petition in error in the district court, wherein the case was reserved to this court for decision.

D. W. D. Marsh, for plaintiff in error.

(No brief for plaintiff in error has come to the hands of the Reporter.)

Wright v. Fitzgerald.

Hunter & Daugherty, and W. E. Finck, for defendant in error.

SCOTT, J. The plaintiff here complains that the court of common pleas erred in sustaining the demurrer of defendant, Fitzgerald, to the reply of the plaintiff, and in thereupon rendering judgment against him. The reply demurred to admits that defendant, Fitzgerald, on the 11th day of November, 1858, paid to Skinner, the sheriff, the full amount of the judgment or decree which had been previously rendered against Grace at the suit of Richardson, and took a receipt in due form therefor from the sheriff. It avers, however, that the sheriff, Skinner, had at that time no order of sale or writ of execution in his hands, none having then been issued in the cause. It is further admitted in the reply that twelve days afterward, on the 23d day of the same month, an order of sale was duly issued in the cause, at the instance of the creditor, Richardson, which on the same day was placed in the hands of the sheriff for execution; upon which writ the sheriff, within thirty days thereefter indorsed the fact that he had received the full amount thereof, with costs, and at *the same time receipted anew to Fitz- [639 gerald for the full amount of the decree and costs in the cause in which the writ had been issued. There is no averment that the sheriff had, before the writ came to his hands, converted to his own "se or in any way misapplied the money previously and prema'urely paid to him by Fitzgerald in satisfaction of the decree. In the absence of any averment of that kind, we are not to presume hat he was guilty of any such act of bad faith.

The sheriff, then, having in his hands the money paid by Fitzgerald in full satisfaction of the decree, it became his clear duty to apply it as he did when the order of sale came to his hands. He could not honestly do otherwise. And of this proper application of the funds in his hands neither the creditor, Richardson, nor the sureties of the sheriff, have any reason to complain. The plaintiff's reply does not show that he, or any one else, was prejudiced by payment being made before the sheriff was legally authorized to receive it. And the sheriff having applied the moneys paid by Fitzgerald to the satisfaction of the writ in his hands, by proper indorsement thereon, the decree, under which the writ issued, was thereby fully discharged and satisfied, and Richardson was entitled to no further process thereon against Grace, the mortgagor, or the mortgaged premises then owned by Fitzgerald; and as against them

Bell v. Wilson. Dunlevy & Co. v. Schartz.

he has no rights to which the present plaintiff or any one else can be subrogated.

The demurrer to plaintiff's reply was properly sustained; and the judgment of the court of common pleas must be affirmed.

DAY, C. J., and WHITE, WELCH, and BRINKERHOFF, JJ., concurred.

640] *ADAM BELL, ADMINISTRATOR OF MARGARET BELL, v. JoSEPH H. WILSON.

MOTION for leave to file petition in error to reverse the judgment of the district court of Green county.

R. F. Howard, for the motion.

M. Barlow, contra.

BY THE COURT: The action below was brought by the administrator of the payce of a promissory note, against the makers, one of the latter being principal and the other surety. The principal made no defense; but the surety answered, setting up an alleged agreement between the principal and maker for an extension of the time of payment. The error assigned is, that the principal maker was admitted as a witness for the surety to prove the agreement. We think he was a competent witness, and that the court did not err in permitting him to testify.

Motion overruled.

D. B. DUNLEVY & Co. v. JACOB SCHARTZ.

MOTION for leave to file petition in error to reverse the judgment

of the district court of Gallia county.

Simeon Nash, for the motion.

S. A. Nash, contra.

American Exp. Co. v. Johnson. Adams Exp. Co. v. St. John.

BY THE COURT. An affidavit stating the plaintiff's belief that defendant had absconded with intent to defraud his creditors, without setting forth any facts justifying such belief, does not lay a sufficient ground for issuing a writ of attachment.

Motion overruled.

*THE AMERICAN EXPRESS COMPANY V. THOMAS JOHNSON. [641

MOTION for leave to file petition in error to reverse the judgment of the district court of Madison county.

Hutchins & Ingersoll, for the motion.
R. A. Harrison, contra.

BY THE COURT. The plaintiff, who was defendant in the original action, is a foreign corporation, and the principal ground of error relied upon is the alleged insufficiency of the service of the original summons. At the time of service the company had a general “superintendent" for the state, residing at Cleveland, and two or more "local agents" in the county of Madison; one of whom resided at London, in said county, and kept an office there, where he received and forwarded packages for the company, and did all the business of the company usually transacted in such receiving and forwarding offices. Service was made upon the said agent at London alone; and the question is, whether he was the "managing agent" of the company, within the meaning of the 68th section of the code? We think he was such managing agent, and that the service was sufficient.

Motion overruled.

THE ADAMS EXPRESS COMPANY v. D. M, ST. JOHN.

MOTION for leave to file petition in error to reverse the judgment of the district court of Greene county.

Lane et al. v. Baughman et al.

R. F. Howard, for the motion.
M. Barlow, contra.

BY THE COURT. The only question involved in this case is, whether, 642] upon the reversal of a justice's judgment in the common pleas, on petition of the defendant, for the reason that the justice had no jurisdiction of his person, the cause can properly be set down for trial and final judgment, against the defendant's consent? We answer the question in the affirmative. The defendant, by filing his petition in error, submits himself to the jurisdiction of the court for trial of the case under the statutory provision on that subject. Motion overruled.

EBENEZER LANE ET AL. V. JOSEPH BAUGHMAN, THE SANDUSKY, DAYTON AND CINCINNATI RAILROAD COMPANY ET AL.

1. An injunction may be allowed restraining the removal and sale on execution of portions of the mortgaged property of a railroad company, on the application of the mortgagees, when the whole of the property mortgaged is admitted to be inadequate security for the payment of the mortgage debts. 2. The remedy of the judgment creditor, in such case, is, in equity, to subject

the interest of the mortgagor to the payment of his judgment; or where the nature of his claim is such as to entitle him to have it paid out of the earnings of the company, by proceedings to appropriate so much thereof as may be necessary to the payment of the judgment.

ERROR to the district court of Greene county.

The plaintiffs in error, mortgagees of the Sandusky, Dayton and Cincinnati Railroad Company, formerly the Mad River and Lake Eric Railroad Company, filed their petition in the court of common pleas of Greene county, asking an injunction to restrain the sale, on execution, of certain personal property in the possession of the company, which is particularly described in the petition, and which had been levied on by the defendants in error, Joseph Baughman and others, to satisfy certain judgments which they hold against the company.

The petition shows that on the first of July, 1846, the Sandusky, Dayton and Cincinnati Railroad Company was a corporation duly organized and incorporated under the laws of the State of Ohio;