Kramer et al. v. The Farmers' and Mechanics' Bank of Steubenville et al. mortgage was executed, I do not perceive with what propriety IN BANk. it can be said there was no consideration. Another objection to the validity of these mortgages, as against the complainants, is, that the said mortgages were never forfeited, so far as the contemplated prospective liabilities are concerned, for the said Doyle did not indorse any paper for Wells, Henry & Co.; but that the proof offered shows that Doyle was principal debtor and not security. The case shows that, at the proper stage, the subject was referred to a Master, to examine and report, with leave to take testimony. He took testimony and reported, ascertaining the amount for which Doyle was liable, as security for Wells, Henry & Company, and which was within the condition of the mortgages. He further reported, that Doyle was not only liable as aforesaid, but that, upon these liabilities, judgment had been recovered against him, by the trustees of the bank, for a sum of more than fourteen thousand dollars. To this report the present complainants, who were there at their own request, before the Court as defendants, took no exceptions. And the report not being excepted to, the Court confirmed it, and decreed accordingly. Surely, under the then existing circumstances, no other decree could have been rendered. The second error assigned, is, that inasmuch as the original complainant could not avail itself directly, it ought not to avail itself indirectly of the said mortgage to the said Doyle; and it is said that this is the suit and decree of the bank, and not of Doyle. The record in the case shows, that, although the original bill was filed by the bank against Wells, Henry & Hanlin, to foreclose the equity of redemption in certain premises, mortgaged by them to the bank, and also against Doyle, as a subsequent mortgagee; yet, subsequently, all those claiming to have liens upon the property, either by mortgage or judgment, came before the Court and were made parties, most of them by their own request: the defendants, who were mortgagees, praying, in their answers, to have the mortgaged premises sold, and the Dec. Term, 1846. Kramer et al. v. The Farmers' and Mechanics' Bank of Steubenville et al. 1846. IN BANK. avails applied as the Court might think proper. The case Dec. Term, finally presented to the Court was one where several persons, having conflicting liens upon the same property, were calling upon the Court to ascertain their respective rights and priorities. Under such circumstances, I do not see that there was any thing wrong, although the Court found the mortgages of the complainants to be void, that a decree should be entered for the sale of the property, and for the proper distribution of the avails. The bill might have been dismissed upon this finding, but it seems to me the Court adopted the better course. But with what propriety this can be said to be a decree of the bank, and not of Doyle, I do not readily perceive. Doyle, as the security of Wells, Henry & Company, was indebted to the bank more than fourteen thousand dollars, for which judgments had been recovered. Now, so far as the interest of the bank was concerned, it was immaterial whether these judgments were satisfied by Doyle, or by Wells, Henry & Company. But with Doyle it did make a difference. It was for his interest that the judgments should be satisfied from the property of Wells, Henry & Company. They had pledged to him property, to indemnify him against his liability. And when the Court decreed that this property should be sold, and the avails applied to the payment of these judgments, it was but the carrying out of the original contract between Wells, Henry & Company, and Doyle, by which they agreed to indemnify him. By the execution of the decree of the Court, he would be indemnified to the extent of the value of the property. Now, although the money arising from the sale is to be paid to the trustees of the bank, the decree directing such payment is a decree rather in favor of Doyle than of the bank. It was what he asked for in his answer. He does not complain of it, and there is no reason why these complainants should; it does them no injury. The third error assigned, is, that it was erroneous to decree that this property should be sold, under Doyle's mortgage, to pay the judgments of the bank, because Doyle was in no way Kramer et al. v. The Farmers' and Mechanics' Bank of Steubenville et al. damnified, as he had paid nothing, and was not moving in the IN BANK. Dec. Term, matter. As before stated, all the parties in the original case were before the Court, and might be considered as actors, or as moving in the matter. They were before the Court as holders of liens upon the same property, seeking to establish their respective priorities. More especially was this the case with Doyle, as is apparent from his answer, as already stated. In consequence of the rendition of the judgments against him, he was so far damnified that he might, with propriety, have the property, mortgaged to him, sold to satisfy that judgment.— Besides, I have no doubt that the bank itself, having judgments against Wells, Henry & Company, as principal debtors, and Doyle as security, might, in equity, subject the property mortgaged by the principal debtor, to the security, as indemnity, to be sold for the satisfaction of such judgments. The next assignment is, that it was erroneous to decree certain bonds, executed by Wells, Henry & Company as principals, and Doyle as security, good, because the same were usurious, and such as the bank had no power to receive. To this it is sufficient to say, that there is nothing in the record from which it can be inferred that any such error existed, or does exist. The error assigned is entirely without the record, and is not sustained by it, nor by any of the exhibits or proofs in the case. It is, in the last place, assigned, that it was erroneous to enter up any decree in favor of the bank, because its charter had expired, and the said bank had no legal existence at the time of the decree rendered. It is true, that the charter of the bank expired during the pendency of the suit, but the suit did not thereby abate. The law made express provision that, in such case, pending suits should be prosecuted by the trustees. And, in this case, the decree is not in favor of the bank, as such; but it is, that the money made by the sale of the mortgaged premises, shall be applied in satisfaction of judgments recovered by the trustees 1846. Crawford v. Swearingen. IN BANK. of the bank. From this it is apparent that, in this respect, there was nothing wrong. Dec. Term, 1846. Upon full consideration, we are of opinion that there is nothing erroneous in the decree complained of, and the bill is therefore dismissed, with costs. JAMES CRWFORD US. HENRY SWEARINGEN. A release of all actions and causes of action, given to the acceptor of a bill of ex change, on a composition with creditors, does not embrace money afterwards paid as indorser, when the bill had been negotiated before due, and, at the date of the release, was bona fide held by a third party. THIS is a WRIT OF ERROR to the Supreme Court of JEFFER SON County. The suit below was assumpsit, in which Swearingen declared as payee of a bill of exchange for $4,000, dated June 8, 1839, drawn, by Crawford, payable sixty days after date to the order of Swearingen, on William Forse, and by him accepted. The declaration contained, also, the common money counts in assumpsit. Plea general issue. The bill had been made for the accommodation of Forse, the acceptor, and was indorsed by Swearingen and one John Brag, with a view to being discounted in bank; but the bank refusing to discount, Forse sold it for value to Christopher C Wolcott. Being protested for nonpayment, Wolcott sued Crawford as drawer, and Swearingen as indorser, and collected part of the amount from each. This suit was then brought against Crawford, as drawer, by Swearingen, to recover the amount he, as indorser, had been compelled to pay Wolcott. On the circuit, the plaintiff below had verdict and judgment, to reverse which, this writ is brought. Crawford v. Swearingen. The bill of exceptions and depositions annexed, will exhibit IN BANK. the defence set up: And now, viz: at this term, this cause came on to be tried before the Court and jury, when the plaintiff, to maintain the issue on his part, gave in evidence to the jury, the bill of exchange described in the declaration, and, also, gave evidence to prove, that the bill, within one or two days of the day of its date, was sold by William Forse, the acceptor, to Christopher C. Wolcott, for a full consideration, who held it until it became due, and that when due, it was duly presented for payment, and protested for nonpayment, and that due notices were given to the drawer and indorsers of such demand and protest. He also gave in evidence, a record of a judgment in favor of Christopher C. Wolcott against Henry Swearingen, the plaintiff in this suit, in an action against him, as indorser on the same bill of exchange; and, also, gave evidence to prove, that said Wolcott had collected from said Swearingen, a part of the amount of said judgment, the residue of the amount of said bill having been paid by said James Crawford, Jr. to said Wolcott. The defendant, to maintain the issue on his part, then proved the execution of an instrument, of which the following is a copy, by Henry Swearingen, and gave the same in evidence to the jury: "Know all men by these presents: Whereas, William Forse, by his deed, duly executed, bearing date the 26th of June, 1839, assigned all his estate to Peter Graaf, in trust for his 'creditors, to which reference may be had; wherefore, know 'ye, that the undersigned, creditors of the said William Forse, ' in consideration of the said assignment, have remised, released ' and forever quitclaimed the said William Forse, his executors ' and administrators, from all claims, demands, action or actions, cause or causes of actions, whatsoever. Witness our hands and seals, the 27th day of June, in the year of our Lord one 'thousand eight hundred and thirty-nine." Signed and sealed by Swearingen, and other creditors. Dec. Term, 1846. |