that he was liable as sheriff for failing to make the money on this execution and for having failed to return it to the clerk's office; but this settlement of this judgment and execution was made by him with the express understanding with Lambert, that he, Taylor, was to have the benefit of said judgment and the right to use Lambert's name in any necessary remedy to obtain satisfaction of the judgment. He says, that it is true, that between 1858 and 1861 he had moneys in his hands of complainant, Hall, out of which this judgment might have been paid, if Hall had been willing or had directed that it should be paid; but a long time passed before this suit was instituted; and now Hall is and has been largely in his debt; that he has tried to get a settlement with the complainants, but has been unsuccessful; that Hall in one transaction owes him $4,800.00. He further says, he is willing, that any sum, which can be shown to be due from him to either of the complainants upon a settlement of their dealings, shall be applied to this judg ment, if they will consent to make such settlement, which they have not done, though often asked, because both of them are largely in his debt. He says further, as the bill shows, that nearly all of the money of Hall, which came into his hands before 1861, if not all of it, was received by him long after the return-day of the first execution, and for this reason could not be by him applied legally to the satisfaction of this execution.

Three witnesses proved, that when the defendant, Taylor, settled with Lambert the amount of his judgment against Hall and Patton, there was a distinct understanding between them, that the judgment was to be for the benefit of Taylor, and that execution should issue on it in Lambert's name and be sent to Wood county to be collected for the use of Taylor. These witnesses were all present at this settlement, and one of them further proves, that in accordance with this distinct understanding, when this execution was afterwards issued and sent to the sheriff of Wood county, Lambert gave an order to Taylor directing the sheriff of Wood county to pay the amount of the execution to Taylor. This order was produced and proven.

On the 23d of October, 1873, the court made the following order: "This cause came on this day again to be heard upon the papers formerly read, and the orders formerly made there

in, and was argued by counsel, and the court being of the opinion, that before a final decree can properly be made therein, a settlement of the accounts and business-transactions of the plaintiff and defendant, James Taylor, should be had. It is therefore adjudged, ordered and decreed, that this cause be and the same is hereby referred to Thomas E. Davis, one of the master-commissioners of this court to ascertain, state and settle the accounts and dealings between the said plaintiffs and the said defendant Taylor, and report the said settlement to a future term of this court. And said commissioner is required to give ten days' notice to either party of the execution of this decree."

Numerous depositions were taken by the parties; and on March 25, 1874, the commissioner made his report, not necessary to be here stated. This report was excepted to for numerous reasons; and on the 25th of November, 1874, the court entered this decree: "This cause came on this day to be heard upon the papers formerly read and the orders formerly made therein. The report of commissioner, Thomas E. Davis, and exceptions thereto and the affidavit of said Hall, and was argued by counsel; upon consideration whereof it is adjudged, ordered and decreed, that the same report be and is hereby set aside, and this cause is recommitted to said commissioner, Thomas E. Davis, with directions to execute the former order of reference in this cause, and state any account the parties may desire between them; and either party may produce such additional testimony before said commissioner as they may deem proper, and retake the deposition of any witness, and said commissioner shall report the proceedings to a future term of this court."

Many more depositions were taken by the parties; and on the 15th day of April, 1876, the commissioner made his report under this order, and with it returned an account between Cyrus Hall and James Taylor, commencing in 1851 and extending to 1863, an account of Taylor with Patton individually, and an account of Taylor with Patton and Hall jointly. The result of these long accounts is thus stated by the commissioner:

"Account stated generally between James Taylor, Cyrus Hall and William M. Patton, including individual accounts

stated, as well as joint accounts stated, will appear as follows,

Wm. M. Patton and C. Hall by joint ac. Taylor, 1,081.13 1,653.97
Amount due Taylor.........

"$2,890.72 $3,232.16 $2,890. 72 $3,232.16

"If it be law, that Taylor is entitled to credit for the accounts stated at the end of each individual account stated, the account will stand as below:

"$3,095.78 $3,430 29 $2,817.21 $2,790 23"

He also filed special reports at request of parties.

To this report both parties filed numerous exceptions, not important to be stated, except the first exception filed by the complainants, which was: "The commissioner erred in his allowance of compound interest upon the execution against the complainant for $250.00, being the first item mentioned in the general account between William M. Patton, Cyrus Hall and James Taylor. It will be seen, he has computed interest up to December 11, 1866, the date when the judgment was purchased by Taylor, making (after deducting credits of $24.67) $409.50 and adding costs $417.03, and upon this latter amount of principal, interest and costs he has computed interest to April 4, 1876. This cannot be done, as it was not a payment of the judgment at Hall's or Patton's request but merely in fact and effect a purchase of the judgment."

On October 26, 1877 the court rendered the following de

cree:

"Thomas E. Davis, one of the commissioners of this court, having made up and filed his report in this cause, on the 15th day of April, 1876, to which the plaintiffs and the defendant, James Taylor, filed their exceptions, respectively. This cause came on this day to be further heard upon the papers formerly read and orders made in this cause, on the said report and exceptions filed thereto, as aforesaid; on the deposi

tions and proofs filed with said report, and in the cause; upon the material accounts and the exhibits filed by the plaintiffs and the defendant, James Taylor; and was argued by counsel. On consideration whereof, it appearing to the court that the parties plaintiff and the defendant, James Taylor, have mutually entered into a general settlement of their accounts, as appears by the papers in their cause, and have submitted their said accounts to the said commissioner, who has fully and minutely investigated and reported upon the same in pursuance of the directions of this court, the court is of the opinion, that the exceptions of the said plaintiffs to the said report of commissioner Davis, numbered one, three, four, five, six, seven and eight, are not well taken, and are therefore overruled, and said exception numbered two, referring to the matter of the special report, hereinafter mentioned, is disregarded as immaterial, as it hereinafter appears from the disposition of the court upon said special report, and that the exceptions of the defendant, Taylor, to said report, numbers one, two, four, five and seven, are not well taken, and are therefore overruled, and that exceptions numbered three and six of said defendant, Taylor, to said report are sustained; it is therefore adjudged, ordered and decreed, that the said report of Commissioner Davis be, and the same is hereby confirmed in all other respects, and as herein modified by the court; and it appearing by said report, that on the 4th day of April, 1876, the said plaintiffs, Cyrus Hall and William M. Patton, upon said settlement were indebted unto the said James Taylor in the sum of $278.54 principal, and $690.06 interest, making an aggregate at that date of principal and interest of the sum of $968.63; and it appearing to the court, that said commissioner in his report erred in allowing the said plaintiffs upon said settlement the sum of $484.59 principal, and $485.60 interest thereon up to the 4th day of April, 1876, being the amount of a receipt or note, bearing date the 3d day of August, 1859, in the report referred to, the same having been previously allowed and settled between Hall and Taylor in the settlement made between them on the 23d day of March, 1860, as shown by the weight of evidence taken in this cause. It is therefore adjudged, ordered and decreed, that the said report be, and the same is hereby corrected and amended in this particular, that

the said James Taylor be allowed as a credit the said sum of $484.59 principal, and $485.60, the interest thereon to the 4th day of April, 1876, aggregating $970.19, which is improperly charged against him in said account, and the court is of the opinion, that the special report of said commissioner made and filed with said general report, at the request of said Cyrus Hall with reference to certain claims and receipts therein mentioned, is immaterial and irrelevant in this cause and it is disregarded. It is therefore adjudged, ordered and decreed, that the said Cyrus Hall and William M. Patton do pay unto the said James Taylor the sum of $968.63, with interest on $278.50, part thereof, from the 4th day of April, 1-76, until paid, and that the said Cyrus Hall and William M. Patton do also pay to the said James Taylor the further sum of $970.19, with interest on $484.59, part thereof, from the 4th day of April, 1876, until paid. And it is further adjudged, ordered and decreed, that the injunction heretofore awarded in this cause be, and the same is dissolved, and that the payment of the judgment enjoined by the plaintiffs in this suit shall be when paid a credit on the amounts herein and hereby decreed against the plaintiffs in favor of the said James Taylor; and that the defendant, James Taylor, recover against the said plaintiffs his costs by him about his suit in this behalf expended. And execution may issue for the defendant, James Taylor, for said amounts and costs. On motion of Daniel Boughner, who filed the receipts and claims mentioned in the special report of Commissioner Davis, made at the request of said Hall, and which is disregarded in this case as herein directed, he has leave to withdraw the same upon leaving in the papers of the cause attested copies thereof. And on motion. of the said plaintiffs, execution on this decree is not to go out of the clerk's office until after the end of the next term of this court."

To this decree an appeal and supersedeas to this Court was awarded by one of the judges thereof.

Walter S. Sands, for appellants cited the following authorities: 3 Johns. 434; 10 Johns. 368; 14 Johns. 87; 8 Johns. 43; 3 Paige 117; 1 N. J. 586; 1 H. & M. 453; 27 Gratt. 740; 1 Call 18; 3 Leigh 85.