20 W. Va. 614 | W. Va. | 1882
announced the opinion of the Court:
From the pleadings and evidence in this cause it must be taken and considered, as against defendant Morohead and his assignors of the judgments, that the judgments in the bill and amended bills mentioned, the collection of which by executions was enjoined by the injunction awarded in
“A portion of the’purchase-money'of said land remaining unpaid, shall be now paid by the said Morehead to the said Horner, and that of the residue the sum of two thousand dollars shall- be retained in the hands of the'said Morehead. by way of indemnity against the claims of the said'three heirs of the said Mrs. Jackson, whose shares have never been released; and whereas it has been, since said sale, ascertained that there are judgments upon the records of the court of Wood county against John W. Horner, of whom the said James Y. Ilorner purchased said land, and against the firm of Ilorner & Johnson, of which the said John W. Horner was a member which as far as the records disclose, .remain unsatisfied, and the said Morehead desires some .indemnity to be given against the same. Now, therefore, this agreement witnesseth, that the said Morehead pays in hand to the said Ilorner, the sum of seven hundred and sixty-five dollars and thirty-three cents the receipt whereof is hereby acknowledged, and executes to the said Ilorner his single bills eight in number, each for the sum of three hundred dollars bearing interest from the 1st of March, 1860, till paid, payable on the 1st days of March and September, in the years 1866, 18C7, 1868 and 1869, and all dated on this 7th day of September, 1865, the receipt of which said eight single .bills is'hereby acknowledged by the said Horner. It is further agreed that of the principal of the said eight single bills, the said Morehead shall retain and hold in his hands th.e sum of two thousand dollars byway of indemnity against the claims of the three heirs of the said Mrs. E. Gr. Jacksón, in whom the title to the said three-sevenths of said sixty acres of land remains outstanding, until it can be determined ■whether the said Morehead shall be subjected to the loss of any portion of said land, and in case of such loss to make compensation to said Morehead for such loss according to law and the right of the parties, but in the meantime the said Morehead agrees to pay the interest on said single bills as*651 follows, to-wit, the interest on e.ach of said single bills, as the same, would fall clue up to the time of its- maturity, from the said 1st of March, 1860, at the time when the same falls due respectively. ”
This, agreement then provides that said James, Y. Horner may retain a vendor’» lien in the deed on the.land for the security of said two thousand four hundred dollars with interest as aforesaid and that,the deed shall be executed and delivered to said Morehead within, twenty clays., And, the said agreement then provides as follows:;
“And whereas the said Morehead, is bound by said contract to convey to said Horner a certain lot of ground in Parkersburg, known as lot Ho. 43 in Stephenson’s addition to the town ot Parkersburg, fronting thirty-six feet on Market street, being the same property on which John W. Horner now resides, the said property having been agreed to be taken and accepted by the said Horner in part payment of the price of said land, it is further agreed that in said deed for said lot, which the said Morehead is to execute and deliver for record 'within ten days from the elate hereof the said Morehead may retain a lien upon the face of said deed to indemnify him against any loss or damage by reason of the judgments aforesaid against the said John W. Horner and Horner & Johnson. And by way oi further- indemnity the said J. Y. Horner agrees and hinds himself to reserve a similar lien in a, deed from him to J. W. Horner, in trust fpr the wife and children of the said J. W, Horner, for' forty acres of land situated in the county of Wood adjoining the land sold to the said Morehead, which said deed reserving said lien the said Horner hinds himself to execute and deliver for record within twenty days from the date hereof.”
. By an agreement in writing made by and between the said James Y. Horner and said Morehead dated the 6tli clay of September, 1866, and set put in statement of the case, it was agreed and stipulated, that the said James Y. Horner, in consideration of the sum- of one thousand four hundred and forty-nine dollars and fifty cents to him in-hand paid by said Morehead, released to said Morehead the lien retained in the said contract between them for the payment of the said eight single bills for three hundred dollars each dated
•Shortly after the date of the last named agreement between the said John Y. Horner and said Morehead, in the fall of 1866, the said Morehead purchased the judgments in the bills mentioned and took assignments thereof to himseli from their respective owners for a valuable consideration, and as he says in his answer to the original bill to protect himself from a qhaneery suit or suits, &c., and from that time the said Morehead became the owner of said judgments he being at. that time and since the owner of said one hundred and. thirty-eight acres of land on which said judgments were liens. The deed from said James Y. Horner of date the 25th Jay of April, 1865, ,to John W. Horner as trustee for his wife and .children as we have seen retains a lien thereon to indemnify said Morehead against judgment-liens or any liability that, may be against said land. The deed from said More-head and wife to the said James Y. Horner for the said house;and lot dated the 8th day of September, 1865, saves, and reserves a lien on said house and lot to indemnify him against “said judgments and against any loss or damage that may be occasioned to him (Morehead), his heirs or assigns by .reason of any prior liens upon said land so -purchased by him from said J. Y. Horner, founded upon the said judgments
It appears that sometime prior to the 3d day of September 1857 the said John "WV Horner and the plaintiff, J. B. Johnson entered into partnership in the business of merchandising in the town of Parkersburg under the firm name of Hor-ner & Johnson, and that on the day and year last aforesaid the said John W. Horner and the plaintiff by an agreement in writing signed and sealed by each ot them dissolved the said partnership in the following terms: “The said Horner to take the entire stock of goods of every kind and description, and in consideration thereof, he (Horner) to pay all the debts and liabilities of every character and description that might be against the firm of Ilorner & Johnson ; and the said Hor-ner to give to said Johnson one thousand dollars to cover the amount of money said Johnson paid into the firm, and also his interest in and to tlie profits of the firm.” The said one thousand dollars was to be paid to said Johnson as a payment on a piece of land sold on the day and year last aforesaid to said Johnson by said Horner. It further appears that said John W. Horner from and after said dissolution took exclusive possession of the effects of said firm as his own and proceeded to dispose of part of them under and by virtue of said contract of dissolution of partnership, and that under and by virtue of said contract of dissolution of partnership 'the said firm of Horner & Johnson became and was from the date thereof dissolved and ceased to do business in the purchase and sale of goods, &c. It further appears that the said dissolution of said firm, and partnership of ITornef & Johnson took place in the year prior to the rendition of any of the judgments in the said bills mentioned and that in the summer of 1858, most probably in the month of July, the sheriff of Wood county by virtue of certain executions against Horner & Johnson and John W. Horner alone in his hands levied upon the store-goods unsold by Horner which formerly belonged to said firm of Horner & Johnson, but which then belonged to said John W. Horner, and sold the same; 'and at that time it may well be inferred from what appears that the said John W. Horner ceased merchandising. It may be in
' Morehead in his answer to the amended bill denies that he had any notice of the agreement of dissolution between Horñér & Johnson and the pleadings and evidence in the cause as before us it seems to me fail to show satisfactorily that he had actual notice of said agreement of dissolution when said judgments were assigned to him. It appears that said judgments were assigned to said Morehead by the owners thereof for a valuable consideration, but each for a consideration less than the amount thereof, but how much less does not appear. Ho execution upon any of the judgments in said bills mentioned appear to have been levied upon the store-goods of- the said J. W. Homer as alleged in the said bills or either of them and the said Homer & Johnson from the evidence seem to have received credits for all payments on said judgments to which they are entitled except the credit of thirty-two dollars and thirty-seven cents consented to by the parties in the decree appealed from, and except also any credits they may be entitled to on the judgment of Fisher, Boyd & Co. arising from collections made by Loomis & Amiss or Amiss attorneys upon the claims placed in their 'hands by J. W. Homer to bo applied to the claims of Fisher, Boyd & Bro. or otherwise in the bills in this-cause mentioned, but that matter is in progress of settlement and adjudication if not already adjudicated in another cause of Fisher, Boyd & Bro. against Horner & Johnson which was pending in the circuit court of Wood county before and at the time Fisher, Boyd & Bro. were made parties to this suit, and for this reason I do not see now from anything appearing that it is proper to consider them in this cause, and they must be left to be determined in the said- cause of- Fisher, Boyd & Co; against said Horner & Johnson.
jSTo sufficient reason now appears to this Court why the last named cause should be consolidated with this cause as prayed in plaintiff’s amended bill, though perhaps it maybe proper to hear them together hereafter.
So far as appears in this cause .all the executions _ ever issued upon any of the judgments in the original bill in this cause mentioned were returned by the officer “JSTo propei’ty found” except the last executions issued shortly before the plaintiff's said injunction was obtained hr this cause upon his original bill, and which was levied upon the plaintiff’s cattle as in the bills.mentioned, and which levy was the immediate cause of the obtaining of said injunction and the filing of said original bill. From the pleadings and evidence it must also be taken that the defendant, Morehead after the judgments in the original bill mentioned were assigned to him caused the executions which were levied upon the plaintiff’s cattle as alleged in said original bill to be issued on said judgments against the said Horner & J ohnson and to be levied upon the plaintiff’s said cattle and that said Morehead is seeking to make the amount of said last, named judgments out of the individual property of the plaintiff..
The first error assigned by the appellant is that, “ it was error to docket. the cause in the circuit court of ~Wqod county on the 22d day of January, 1879, there not appearing to have been an order made by the circuit court of Harrison county, transferring the cause to -the former court.” This assignment of error is not well taken as it now appears that there was such an order of transfer made in the cause by the . circuit court of Harrison county on the 2d day of December, 1878.
The appellant’s second assignment of error is that “ it was error to entertain the defendants’ exceptions to commissioner’s report. The exceptions should have been deemed waived,
The appellant’s third assignment of error is that “it was error to dismiss the bill and amended bill, thereby denying any relief to the petitioner.” In support of this assignment ot error the appellant’s counsel maintain as a proposition of law, that the said contract by which appellant sold out his interest in the partnership to his co-partner and in which his said co-partner John W. Horner in consideration of said interest agreed to pay all the firm debts and liabilities established as between them the relation of principal and surety in a court of equity making said John W. Ilorner the principal debtor for the payment of the firm debts and appellant merely his surety for the payment thereof.
In the case of Oakley v. Pasheller, Clark & Finnelly’s R. 206, the syllabus as reported is: “R. and S. partners in trade, executed in the year 1811, four joint and several bonds to 0., to secure repayment of ten thousand pounds sterling, advanced to them by his acceptance and payment of four bills of exchange, amounting together to that sum. Two ot the bonds were made payable in 1817 and two in 1818. S. died early in 1815, and his executors agreed with R. and with K., who was then in partnership with R., in place of S., that R. and 3L,in consideration of the outstanding debts and effects of the former partnership, would pay certain sums to the executors, and would also indemnify S.’s estate against certain schedule debts including these bonds. Ho notice of that agreement was given to 0. lie continued to receive interest on the bonds from the now firm as well after as before they became due; and the annual accounts which they furnished him contained an account of the dividends due to him on seventeen thousand pounds sterling stock, which he lent to the new firm. From O.’s correspondence with that firm in 1820, it appeared that he had, in 1817, given them
In the case of Eldad Smith v. Allen Shelden et als. 35 Michigan 42, the 2d and 3d section of the syllabus as reported is as follows:
“2. "When on the dissolution of a co-partnership one partner purchases the interest of his co-partners, agreeing to pay all the partnership liabilities, the partner thus retiring may still be held liable by the creditors, but if he is compelled to pay lie is entitled to indemnity from the other partner and is therefore as to such other partner a surety merely upon the partnership obligation.
“3. A surety is defined as a person who being liable to pay a debt or perform an obligation, is entitled, if it is enforced' against him, to be indemnified by some other person who ought himself to have made payment or performance before the surety was compelled to do so ; and the relation is fixed entirely by the arrangement and equities between the debtors or obligors and may or may not be known to the creditors.”
In the case of George Colgrove v. Charles Tallman, 67 N. Y. 95, the syllabus as reported is as follows : “Where one of two co-partners purchases the interest of the other in the partnership property, and assumes and agrees to pay the partnership debts, as to such debts the foimer becomes in equity the principal debtor and the latter a surety; and this relationship a firm creditor having notice of the agreement is bound to observe. When a creditor having such notice, is
See also upon this subject and as supporting the principle decided in the above cited cases: Frow, Jacobs & Co.’s estate, 78 Pa. State R. by R. Smith 459, 466; Millerd et al. v. Thorn, 56 N. Y. by Sickles 402; Saxage et al. v. Putnam et al. 32 N. Y. 501; Stuyvesant v. Hall et als. 2 Barbour’s Chy. R. 151; Wilkes et als. v. Harper et als. Id. 338, Eng. Com. Law Reports; Aflalo Fourdrinier, &c. p. 90; Ætna Insurance Company v. Wires et al., 2 Williams (Vermont) 98; Wilson v. Lloyd, 16 Equity Cases, Law Reports 1873, vol. 2d, 1st part; White and Tudor’s Lea. Cases in Eq. 4th Ed. 277, 281, 282; same vol. 2d part’ 2d 1345; same Vol. I. part 1, 147.
In the case of Hupp v. Hupp, 6 Gratt. 310, the syllabus is: “H. & E. are merchants and partners. II. sells out to M.; and the new firm undertakes to pay the" debts of the first. PI. becomes indebted to the new firm, for which he executes his bond with two sureties; aud this bond is assigned for value to A. The new firm afterwards fails and the partners are insolvent, leaving debts of the old firm unpaid to a larger amount than the bond of IT. and II. pays them. Held : II. is entitled in equitjq to set-off against his bond in .the 'hands of the assignee, the debts of the old concern of II. & hi., which M: & hi. were bound to pay and which II.- paid.”
In the case of Buchanan v. Clark et als., 10 Gratt. 164 the 1st section of the syllabus is: -“1. G.,'B. and IT. -were principal obligors in a bond. B. and IT. put money in the hands of G. to pay the bond; and he bound himself to pay it, but failed to do so, and became insolvent. A judgment was recovered'on the bond against the three, and B. paid it. After the judgment G. conveyed land to S. to secure a debt due to him and another debt due to C. Upon a bill by B. and IT. against S. and C. to subject the land conveyed in the deed to S. to satisfy the debt B. had paid, S. stated in his answer that prior to the judgment he held the bond of G., B. and IT. and that he had delivered it up upon receiving the bond of G. with the deed to secure it; but there was no proof of this. C. in his answer, stated that he had before the
Under the authorities and upon principle it is clear that the said proposition of the counsel for the appellant is correct. A.s regards the rights of the surety agaiiist his principal, he is plainly entitled to expect, not only that the principal shall save him from harm, by exempting him from payment of the debt, or if that has not been done, by reimbursing him when he has paid it; but moreover that the principal shall allow him the benefit of the means of payment which the latter has placed in the hands or within the power of the creditor. The surety has therefore a right to enforce against his principal all securities which the latter has given his creditor; for the
In 2d vol. White & Tudor’s Lea. Ca. in Equity, part 1, 279 this is laid clown: “It is accordingly well settled throughout the greater part of the United States, that payment by a surety is prima facie a purchase, entitling him to stand in the place of the'creditor as it regards the debt and every means or remedy .by which it is secured; Hayes v. Ward, 4 Johnson Ch. 123.”
In McCormick v. Irwin, 11 Casey 117 Judge Strong said, “ The familiar doctrine of subrogation is, that where one has been ’compelled to pay a'debt which ought to have been paid by another, he is entitled to a cession of all the remedies which the creditor possessed against that other. To' the creditor, both may have been equally liable; but if, as between themselves, there is a superior obligation resting on the one to pay the'debt the other after paying it, may use the creditor’s secririty to obtain reimbursement; *' * * The doctrine does not depend upon priority, nor is it confined to cases of strict suretyship. It is a mode which equity adopts to compel the ultimate discharge of the debt by him who in good conscience ought to pay it, and to relieve him where none but the creditor could ask to pay. To effect this the latter is allowed to take the place of the creditor, and make use of all the creditor’s securities as 'if they were his own.
In White & Tudor’s Lea. Ca. vol. 2 part'2 p. 1345, it is said: “Hence, when land,' subject to a judgment, is-conveyed with a covenant of warranty or against incumbrances, the grantee may not only require that the judgment should be deducted from the purchase-money, but may file a bill to have the amount set off in a suit for a distinct cause of ac
In Irick v. Black, 2 C. E. Green N. J. Eq. 189, it was bold: “ 1. A surety wlio lias paid tlie debt of the principal, is at 'once subrogated to all the rights, remedies and securities of tlie creditor. 2. Wliore tlie debt lias become payable a surety may tile a bill to compel payment of the principal, in order that lie may be relieved from responsibility.”
In tlie case .at bar it is manifest that tlie appellant after said judgments were rendered against the said firm as security for tlie .payment of said judgment-debts .had a right to file his bill in equity, to subject said one hundred and tliirty-eiglit acres of land to the payment of said judgment-debts and to his relief .as such surety from the payment thereof in the hands of said John W. Horner., said James Y. Horner or said Mordicad at any time prior to tlie purchase and assignment of said judgments to the said Mordicad because said John W. Horner was in fáct’-tlie principal debtor quoad said judgment-debts and said judgments were liens upon said land in the hands of said John W. Horner, and also in the hands of said J. Y. Horner and also in the hands of said Mordicad, and .said judgment-liens upon said .land, so far as appears by the record before us, could at .any time have been inforced by the judgment-creditors. It is clear from Morehead’s answers and from what otherwise appears that Mordicad before he received liis deed for said land from said J. Y. Ilorner, not onty had constructive notice that said judgments were liens upon said lands but in fact had actual notice thereof.
The surety’s right to subrogation does not grow out of the contract with the creditor, but from his relation with the principal which renders it incumbent .on the latter to exonerate the surety. Whenever one is liable in person or estate to a charge which ought to be borne primarily by another person or his estate, tlie person first named will have the equity of the surety, and be entitled to the securities and remedies of a creditor as a means of carrying that equity into effect; Wilkes v. Harper, 2 Barb. Chy. 338; White & Tudor’s Lea. Ca. in Eq. vol. 2 part 1 pp. 282, 283.
It does not appear in this case that said John W. Horner
In the case of Koons v. Hartman, 7 Watts. Pa. P. 20, it was held that: “If the plaintiff in a judgment became the owner of the land upon which that judgment is a lien, the lien thereby becomes extinct by operation of law; and no subsequent sale of the land by the sheriff, will vest a title in the purchaser.” In this case Judge Kennedy delivered the opinion of the court and at page twenty-four he says : “Besides he must be viewed as having held the land, from the moment he became the owner of it, entirely free from all lien on account of the judgment; because, being the owner (as it most clearly appears from the evidence) of the judg
In the case of Wright v. Knepper, Sahl & Leckey, 1 Penn. State R. by Barr page 361, the syllabus of this case as reported is: “The purchaser of a lot of ground on which there is the lien of a judgment against two or more persons, one of whom is surety, by purchasing and taking an assignment of the judgment discharges the surety pro tanto.” In the court below this was a scire facias to revive judgment, &c., in which Enoch Wright, for the use of Michael Ensley, the plaintiff, in error, was the plaintiff, and William W. Knepper, Leopold Sahl and William Leckey were defendants. All the facts of the case as reported were these: Enoch Wright obtained an amicable judgment by confession against the defendants for six hundred and eighteen dollars and eighty-four cents, which on the 7th of July, 1841, wras entered of record, in Allegheny county, and became a lien on a lot of ground situate in Allegheny city, and owned by Leopold Sahl. On the 16th day of December, 1842, Leopold Sahl for the consideration of four hundred and sixty dollars conveyed this lot to Michael Ensley.. On the 17th of June, 1844, Enoch Wright- for a bona fide consideration assigned the judgment to Michael Ensley, without recourse and subject to a credit of two hundred dollars, paid 26th of July, 1841, and a further credit of interest on the whole amount to April 1, 1841. It was found on the part of Wil
' “In Koons v. Hartman, 7 Watts 20, the general principle is ruled, that if the plaintiffs in the judgment become the owners of the land upon which the judgment is a lien, the lien becomes extinct by operation of law. Of the benefit of this principié to the extent of the value of the land, the surety cannot be deprived. But by purchasing the judgment and obtaining control of it, the plaintiff seeks to buy the debt from the surety, and thereby exempts the lot, of which
While I do not concur fully with all that is said by the judge who delivered the opinion of the court in the last named case still I concur and agree with the most that is said in it which is applicable to the question under consideration and to that extent I construe it to be in accordance with the principles decided in the case of Buchanan v. Clark et als., 10 Gratt. 170, 172, 173. I am therefore of opinion that as Morehead before and at the time ho purchased and took assignments of said judgments from the owners thereof held and owned said one hundred and thirty-eight acres of land, and as said judgments were liens on said land in his hands for the payment and satisfaction of the amounts of said judgments quoad the appellant before and at the time he purchased and received said assignments of said several judgments and in relief and discharge of the appellant therefrom who was in fact a surety only, for the payment of said judgments while said John W. Horner was the principal debtor therein, that when the said Morehead purchased and took assignments of said several judgments from the owners thereof tfre appellant became and was discharged from said judgments and the amounts due thereon and the payment thereof pro tanto, that is to say to the extent of the value of said one hundred and thirty-eight acres of land on the 30th day of October, 1866, when he purchased and received the last of said assignments of said several judgments from the owners thereof, the first purchase being made on the 16th day of September, 1866, as stated by Morehead. The usual time is the time of the assignment of the judgment, but as there were several judgments assigned in this case I have fixed the date of the last assignment for convenience, as I don’t see any party can be prejudiced thereby. And if the value of said one hundred and thirty-eight acres of land at said time is found to be equal to or in excess of the aggregate amount due on said several judgments including all
But the discharge of appellant in whole or part as the case may be from liability upon the said judgments for the reasons aforesaid does not discharge the said judgments and their several liens as to the real estate of-said John W. Hor-ner, deceased, other than the said one hundred and thirty-eight acres of land if any there be in so far as the same remains unpaid after deducting all proper credits.
The injunction as prayed for in the original bill is against the judgment in favor of said firm of E. B. Long & Co. against the said firm of Horner & Johnson confessed at the ■August term of the county court of-Wood county for two hundred and seventy-eight dollars and fifty-three cents with interest on one hundred and thirty-nine dollars and twenty-six cents from May 12, 1858, and on one hundred and thirty-nine dollars and twenty-six cents from June 12, 1858, and costs of suit and the said judgment of said firm of Straus, Hartman, Hoffiin & Co. rendered at the October term 1858 of said county court for three hundred and thirty-six dollars and sixty-three cents and costs of suit against said firm of Horner & Johnson and the said judgment of the said firm of Young, Carson & Bryant against said firm of Horner & Johnson tendered by said county court at the November term 1858 for sixty-five dollars with interest thereon from November 12, 1858, and costs of suit.
The commissioner credits the first named judgment with cash paid by J. W. Horner, September 11,1865, one hundred and twenty-five dollars, which credit I think is correct, and also credits the same “ by overpaying another execution, September 12,1865.” I see no evidence to authorize this credit, but as the defendants in the final decree rendered by the circuit court in this cause consented to the same it is doubtless correct. The second judgment above named the commissioner credits with cash, September 12, 1865, by J. W. Hor-ner one hundred and fifty dollars. This credit is I think correct. The commissioner is I think mistaken when he
As to the questions made and discussed by counsel in the cause touching the matter of indemnity mentioned in the plaintiff’s bill it is unnecessary to intimate any opinion, now first because all the parties interested in the questions directly arising upon said alleged indemnity to Morehead for loss, &c., on account of judgments are not before the Court, and I think it would perhaps be improper,to unnecessarily pass upon said alleged indemnity or its effects in their absence. Second. Erom what appears in the cause I think the value
As before stated the record of the suit of Fisher, Boyd & Bro. against Ilorner & Johnson in the amended bill in this cause mentioned is not before us and this cause was not heard upon or with that case and I therefore cannot now see and determine that it would be proper for the Court to consolidate that cause with this, but however that may be I think it would be proper to hear that cause with this after this cause is remanded to the circuit court.
The injunction prayed for in the original bill is, “ that in the meantime the sheriff of Wood county and the said afore-named defendants and all others interested, their agents and attorneys, be enjoined and restrained from all further proceedings on the last mentioned judgments; and that the injunction may be perpetuated.” The order of injunction is not contained in the record as before us, but if the order of in
There were some other questions discussed by counsel in this cause, which under the views I have taken have become immaterial and unnecessary to be determined in this cause and I therefore express no opinion upon them.
Tor the foregoing reasons I am of opinion that there is no error in the decree rendered in this cause by the circuit court of Wood county on the 22d day of January, 1879, and the same must therefore be affirmed but that there is error in the decree rendered in this cause by the circuit court of the county of "Wood on the 16th day of April, 1879, and that the same must be reversed in so far as the said circuit court in .its said decree declared it to be its “opinion that the complainant is not entitled to the relief prayed for in said bill and amended bill,” and also in so far as the said circuit court in and by.its said decree ordered that the said bill and amended bill be dismissed and that defendants except R, E. Horner recover of the complainants their costs about their defense in this suit expended, and that appellee James L. Morehead must pay to the appellant John B. Johnson his costs in this Court about the prosecution of his appeal and supersedeas expended. And this Court proceeding to render such decree as the said circuit court should have rendered it is adjudged, ordered and decreed that this cause be remanded to the said circuit court with instructions to cause the same to be referred to a commissioner to ascertain and report the amount of each of the judgments in the original bill mentioned, further proceedings on which were enjoined by injunction heretofore allowed in this cause, .including interest
DECREES AeEIRMED IN PART AND REVERSED IN PART.
Cause Remanded.