C. HIGGINS, vs. T. WEST.

Practice in decreeing a sale of mortgaged premises, on a foreclosure.

THIS suit is reserved from Franklin county, to settle the form of a decree, in cases brought to collect money secured by mortgage.

L. STARLING, for complainant.

LANE, J., delivered the opinion of the Court.

In all cases of this nature, the mortgagee may insist on a sale: and he is entitled to a decree for foreclosure, where two thirds the value of the mortgaged tenements, does not exceed the amount of the debt. (1 Ohio, 235.)

Where a sale is to be made, it is the interest of all that no unnecessary delay should be made. In these cases, after the amount due shall be ascertained, either by a computation or by reference to the master, a decree may be entered, commanding the master to make the amount of money due, by a sale of the mortgag ed tenements, (or of so much as may be necessary,) under the forms and restrictions prescribed in the statute for the sale of lands by execution at law.

But where the debt cannot be paid by a sale of the land, and the mortgagee is desirous to purchase, the value should be ascertained in some mode analagous to that directed by the execution law. A decree may be entered, directing the master to cause a valuation, in the manner prescribed by that statute, and upon its return, a decree be entered, either for foreclosure or sale, as the appraisement may justify; and in the event of a sale, no new valuation will be required; and this case will not cause the delay of a term, if this return of the value can be made, during the session of the Court.

BENJ. M. PIATT, vs. HEIRS OF ST. CLAIR AND BANK OF THE UNITED STATES, AND OTHERS.

Though administrator may have disposed of all the estate of an intestate, yet if he decease, no legal proceeding can be had to charge the estate without appointing administrator de bonis non.

THIS was a suit in chancery adjourned from the county of Hamilton. The object of the bill was to charge the real estate of the late Arthur St. Clair, dec'd., in the hands of the defendants, with the payment of a debt of the intestate. Administration had been granted and all the estate real and personal disposed of, by the administrator, who died after the commencement of this suit. No administrator de bonis non having been appointed, a question was made, whether the cause could proceed without such appointment, and the person receiving it being party defendant to the suit.

CASWELL and STARR, and HAMMOND, for the complainant, insisted, that an administrator de bonis non, need not be appointed. The whole estate having been disposed of, and the defendants being alone interested, in resisting the debt, and in protecting the property against being subjected to the payment of it, there was nothing for an administrator de bonis non to do.

N. WRIGHT and WORTHINGTON, for the respondents, suggested that if the Court were of opinion that a valid decree could be made, as the case stood, they were satisfied.

BY THE COUrt.

It is safest to make the appointment. It has always been held that to charge a decedent's estate, with his debts, there must be a personal representative to proceed against. We are not willing to make a new precedent. The cause will be continued that the appointment may be made, and the party brought before the Court.

INDEX

OF

PRINCIPAL MATTERS.

ACTION.

Where the defendant dies after suit brought, and the action survives against the executor or administrator, the plaintif cannot recover costs. Farrier, vs. Cairns, 24.

An action of assumpsit cannot be maintained to recover back money for improvements made on land, under a parol contract of purchase, and which has been put an end to by the vendor dispossessing the plaintif. Welch, vs. Welch, 267.

Although the act of limitation of 1810 does not, in terms, bar the action of assumpsit after six years, yet it has been uniformly held to be embraced within the general terms of the statute, "actions upon the case." Williams, vs. Williams, 280. SEE Bond. Canals and Canal Commissioners.

ACCOUNT.

Book accounts continuously and fairly kept for a series of years, may be proven by the parties within eighteen months after closing the accounts. James, vs. Richmond, et al. 209.

ADMINISTRATORS. SEE Executors and Administrators.

AGREEMENT. SEE Contracts.

AMENDMENT.

A verdict is not amendable in matter of form, in the Supreme Court, after error brought. After judgment reversed, the amendment may be allowed, in a proper case, by the Common Pleas, where the verdict was rendered. Hanley, vs. Levin, 142.

APPEAL.

An appeal lies to the Common Pleas from the judgment of a Justice of the Peace for a penalty, for obstructing a road, at the suit of the Supervisor. Bittle, vs. Hay, 164.

On appeal from the Common Pleas to the Supreme Court, the bond must be for double the amount of debt and costs, except the appellant's costs. Bliss, vs. Long, 169.

An appeal lies from a Justice of the Peace to the Common Pleas, in a suit brought by a Paymaster to recover militia fines. Wright, vs. Munger, 278. An appeal lies to the Common Pleas from the decision of County Commissioners, on a contract to build a bridge. Commissioners of Clermont, vs. Robb, 312.

If, upon such appeal, the Court order money to be paid, the order must be directed to the Auditor. Ib.

ARSON.

Where two persons are indicted separately for the same arson, and one is tried and convicted; the record of such conviction is not admissible evidence on the trial of the other. Kazer, vs. Ohio, 172.

ASSIGNOR AND ASSIGNEE.

The assignee of a note under seal, for money, payable to order and negotiated before due, holds it discharged of all equity in favor of the maker. Bank of St. Clairsville, vs. Smith, et al., 137.

The assignment of his effects by an insolvent debtor, for the benefit of preferred creditors, with a stipulation, that those who do not release the debtor within a specified time, shall receive nothing, is void, as against such creditors as do not sign such release. Atkinson et al., vs. Jordan, et al., 178.

ASSUMPSIT.

An action of assumpsit cannot be maintained to recover back money, for improvements made on land, under a parol contract of purchase, and which has been put an end to by the vendor, dispossessing the plaintif. Welch, vs. Welch, 267.

Although the act of limitations of 1810 does not, in terms, bar the action of assumpsit after six years, yet it has been uniformly held to be embraced within the general terms of the statute, "actions upon the case." Williams, vs. Williams, 280.

BAILMENT.

The bailee of a chattel cannot, by a sale of it, divest the right of the owner. Roland, vs. Gundy, 127.

BANKS.

The teller of a Bank may testify to the hand writing of the President and Cashier, although he never saw them write. Hess, vs. Ohio, 1.

Stockholders in an incorporated Bank, may sustain a Bill in Chancery against the Company, the Directors, and other individuals, upon allegations of fraudulent practices, depreciating the stock, and discrediting the Bank. Taylor, vs. Mi. Ex. Co. et al., 99.

BILLS OF EXCHANGE AND PROMISSORY NOTES.

Bank

The assignee of a note under seal, for money, payable to order, and negotiated before due, holds it discharged of all equity in favor of the maker. of St. Clairsville, vs. Smith, et al., 137. SEE Commercial Paper.