John Lowden v. The City of Cincinnati.

there was no regular and formal certificate that the work had been done according to contract. This certificate, in fact, was not procured and supplied until after this suit was commenced. It may be that the delay, in this respect, was occasioned by the fact that the contract had been mislaid. This might well happen in the long lapse of time that the completion of the contract had been delayed, and, as before observed, it is not for the plaintiff to urge others to extraordinary diligence. A delay of several months, might well have been allowed to find the written contract, and ascertain whether its terms had been complied with, when a period of nine years, in addition to those allowed, had been taken for its completion.

I do not intend to decide what might be the rights of the plaintiff, in the event the city council had distinctly refused an assessment. The decision of that question will involve considerations to which I have not adverted, and, particularly, one transaction as to which the information before us is quite meager; I allude to the recent building of a wall by the city, which, it is said, was to enable the plaintiff to complete the work under the contract. Still less is it for me to decide, as to the duty of the city council to make an assess-. ment under all the circumstances of this case. That is a matter for the judgment and discretion of the city council. I do, however, decide that, in the attitude in which the case is now presented, the plaintiff has not satisfied me that there has been either a refusal or any neglect which would amount to a refusal on the part of the city council, to make an assessment. The plaintiff, therefore, from all that appears in this case, has not been prevented by the defendant from complying with the condition in his contract, and, therefore, can not recover.

Judgment for defendant.

14

Samuel Judds Sons & Co. v. S. B. Dean & Co.

SAMUEL JUDDS SONS & Co. v. S. B. DEAN & Co.

(No. 8,667.)

In a suit upon a foreign judgment, the record is matter of evidence, and should not be attached to the petition.

SPECIAL TERM.-On demurrer to petition. A suit on a judgment rendered in New York. Dean & Co. demurred, because the petition did not contain a transcript of the judgment record.

Collins & Herron, for plaintiffs.

Ranney, Backus & Noble, for defendants.

STORER, J. The petition contains substantially all that would have been required in a declaration before the code; and since, the code excludes from the petition all mere matters of evidence, and a transcript from the record, is evidence merely, the court would be compelled to order it to be stricken out, if it were included in or attached as an exhibit to the petition. If defendant wishes to see the record, it is public property, and equally open to him with plaintiff. Demurrer overruled and leave to answer.

WM. RESOR V. MCKENZIE, STERRETT & Co.

(No. 8,408.)

In certain cases where, on payment of money, a right of subrogation exists, the defendant, when sued for the recovery of such money, may, by cross petition, bring in as defendants those against whom a cause of action would arise, in his favor, to enforce the repayment of such debt.

Wm. Resor v. McKenzie, Sterrett & Co.

SPECIAL TERM.-On demurrer to cross petition making new defendants.

In this case the plaintiff sues on a promissory note against defendants, McKenzie, Sterrett, Keys & Maltby. The three last defendants filed their answer in the nature of a cross bill, and set up that all the defendants were formerly partners in the business of a sugar refinery; that this note was given to plaintiff as part of purchase money for partnership property, and was secured by a mortgage executed by all of them to the plaintiff; that the partnership had been dissolved, and the interest of the three last defendants, by contract, had been transferred, and McKenzie had become responsible to pay this note, and others still due; that McKenzie, Brashears, Kilbreth and Stettinius now compose a new partnership, as Kilbreth, McKenzie & Co., carrying on the same business, the three last of whom had assumed, with said McKenzie, to pay this note and others not yet due, all of which were secured by mortgage. The last four defendants were asked to be made defendants to the cross bill, that Keys, Maltby & Sterrett might be protected. To this answer and cross bill, the parties sought to be made defendants, demur, on the ground that they were improperly made parties.

Jones & Burnet, for plaintiff.

King & Thompson, for Keys, Sterrett & Maltby.

Haines, Todd and Lytle, for Kilbreth, McKenzie & Co.

STORER, J. Those of the defendants who are the makers of the note, declared, as set up in their answer, that McKenzie, their co-defendant, is bound in equity to protect them from its payment, having, as they assert, assumed, on a dissolution of the partnership, of which they were all members, to discharge all the debts of the firm, especially this. note, which is secured by mortgage upon the property

4

Wm. Resor v. McKenzie, Sterrett & Co.

where their business was carried on, and being part of the original purchase money thereof.

They, therefore, ask that he may be compelled to comply with his agreement, and the premises mortgaged be charged with the payment of the debt in controversy.

After the dissolution it appears, McKenzie formed a new partnership, with Neff & Kilbreth, and the former having deceased, his interest is now owned by Brashears & Stettinius, who, it is alleged, have assumed to discharge the debt for which McKenzie is liable.

Those parties are all made defendants to the answer of Sterrett, Maltby & Keys, which is in the nature of a cross bill with the proper prayer for relief.

Kilbreth, McKenzie & Co. now demur.

The cause is stated to be that they can not be required to answer in this controversy.

We can see no other ground, on which such a claim can be made, than the misjoinder of parties.

It is very clear, the several parties, made defendants to the answer, are liable to keep Sterrett, Maltby & Keys harmless from the payment of these notes; and whenever the latter have paid them or either of them, they may bring their action, and subject the mortgaged property to discharge the debt, working out their equity through Resor's mortgage.

As they are, inter se, the sureties of McKenzie, who became the owner of the property by their release, they are entitled to be subrogated to all the rights of Resor, and may well maintain their remedy for appropriate relief.

In this proceeding, they ask no more than they would be entitled to claim in another suit or proceeding, which would include the joinder of all the former parties, and create additional costs, without affording any advantage to either of these defendants, either in making their defense, if they have any, or in the settlement of their several rights.

The plaintiff makes no objection to the joinder of new defendants, and he could not with any propriety, as the answer stands. If he had filed his petition to foreclose his

Jas. M. Thompson v. A. B. McManama et al.

mortgage, all the parties now before the court, must have been made defendants, and the same result will be practically obtained by the cross bill.

We can see no impropriety in the joinder of the defendants who have demurred, and we overrule the demurrer, and give leave to answer. Demurrer overruled.

JAS. M. THOMPSON v. A. B. McMANAMA ET AL.

(No. 7,580.)

1. If the terms of sale are not complied with by a purchaser at sheriff's sale, it is the duty of the sheriff to ignore the bid and immediately reoffer the property for sale.

2. If, by an agreement of parties, the purchaser is allowed time to comply with the terms of sale, and that in case of his failure the next highest bidder may take the property; upon such a return of facts the sheriff can neither disregard the sale nor return the next highest bidder as purchaser.

3. A purchaser may assign his bid, but a sale can be made only to the highest and best bidder.

SPECIAL TERM.-On motion to set aside a sheriff's sale. At the January term, A. D. 1858, the plaintiff obtained a decree of foreclosure and sale of certain leasehold premises in the city of Cincinnati. The property was appraised at $900, and the sheriff makes his return that the property " was struck off and sold to Joseph Temple for the sum of $860, it being more than two-thirds of the appraised value of said lot or parcel of land, and he being the highest and best bidder for said premises and the purchaser thereof." The sheriff also indorsed upon the order of sale the following statement of facts, viz:

"1858, March 15. In this case, at the sale of the premises herein described, George B. Whitcomb bid for said property the sum of $875, whereupon the same was knocked