said warrant of attorney, and for the manifest collusion, fraud and illegal conduct, on the part of the defendants in the b ll, in obtaining the judgment. This bill was dismissed by the complainants the same term at which it was filed, and the injunction, allowed therein, dissolved.

ALSO, the following statement of David E. Wade, which was admitted in ev. idence, by consent, as if sworn to, not admitting its truth or competency. David E. Wade states, that in 1820 he was a director of the Miami Exporting Company, and acting as their president, pro tem. That the above bill in chancery was filed at the instance of B. Storer, one of the counsel of the bank, Mr. Este being absent: That he was first induced to take some steps in this matter by Henry Avery, who informed him how the judgments were taken, and urged him to file the bill, which he did, by the advice of Storer, and two or three of the directors, contrary to his own opinion. He thinks the board of directors were not convened upon the occasion.

The Miami Exporting Company gave in evidence, a bill in chancery, and an injunction allowed thereon, filed in the supreme court of Hamilton county, on the 18th of May, 1821, by the Cincinnati Manufacturing Company, against the Miami Exporting Company, Oliver M. Spencer a.id William Oliver, charging that the warrant of attorney to Benham was unauthorized by the Cincinnati Manufacturing Company, and reciting the allegations contained in the bill filed by the Miami Exporting Company, against the Cincinnati Manufacturing Company, as above set forth; and charging that the Miami Exporting Company had levied an execution on the lands of the Cincinnati Manufacturing Company, and were proceeding to sell the same, and prayed a perpetual injunction. The bill was answered; and on the final hearing, May 19th, 1823, was dismissed, at the costs of the complainants.

ALSO, the record of the original judgment in favor of the Miami Exporting Company, against the Cincinnati Manufacturing Company, and of the proceed. ings in a writ of error allowed thereon; from which it appeared, that a summons issued in favor of the Miami Exporting Company, against the Cincinnati Manufacturing Company, on the 7th, and was served on the 13th of October, 1820, and that the judgment was confessed by Benham on the 12th of the same month, by virtue of a warrant of attorney for that purpose, executed by Davis and Wheeler, as trustees of the Cincinnati Manufacturing Company, with a release of error, and stay of execution for three months. Upon this judgment, a writ of error was allowed on the 27th of September, 1825, and continued in the supreme court until May term, 1829, when the same was quashed, on the motion of the defendants in error.

ALSO, the record of the original judgment in favor of Davis, Findlay, and Wheeler, against the Cincinnati Manufacturing Company, and of the proceel. ings in a writ of error allowed thereon; from which it appeared, that this judg ment was confessed by Benham on the same day, and under the same circum. stances, as the judgment in favor of the Miami Exporting Company, with the exception of a stay of execution. Upon this judgment a writ of error was allowed on the 21st of April, 1825, which was discontinued by the plaintiff in er. ror, at May term, 1829.

ALSO, a bill in chancery, now pending in the common pleas of Hamilton

county, filed by the bank of the United States and William Lytle, against the Cincinnati Manufacturing Company, the Miami Exporting Company, Davis, Findlay, Wheeler, and Avery, setting forth the assignment of said mortgage, and of the judgment of Lyte and Avery, against the Cincinnati Manufacturing Company, to the bank; and also, all the proceedings of the Miami Exporting Company, and of Davis, Findlay, and Wheeler, in relation to their respective judgments against the Cincinnati Manufacturing Company, and praying a sale of the mortgaged premises, for the benefit of the judgment of Lytle and Avery, and an injunction against the Miami Exporting Company, to restrain them from enforcing their judgment against the mortgaged premises.

ALSO, the answer of the Miami Exporting Company, asserting their rights to a preference, by virtue of their prior judgment against the Cincinnati Manufacturing Company.

The order for the distribution of the moneys in controversy, was made on the 16th of November, 1829, the same day on which the land was sold.

No bonds were given upon the allowance of the writs of error, upon the judgments against the Cincinnati Manufacturing Company.

The judgment of the Miami Exporting Company was revived on the 24th of December, 1829.

Upon his state of facts, the court below ordered, that after discharging the judgment of Hafer, the balance of said moneys should be applied to the discharge of the judgments of Davis, Findlay, and Wheeler, against the Cincinnati Manufacturing Company, and the Miami Exporting Company, against the Cincinnati Manufacturing Company, in preference to the judgment of Lytle and Avery, against the Cincinnati Manufacturing Company; to which order, the bank of the United States, assignees of Lytle and Avery, excepted, and sued out this writ of certiorari,

Caswell and Starr, for the plaintiffs in certiorari.

Storer and For, on the same side.

By the COURT.

Worthington, contra.

The assignees of Lytle and Avery, having purchased the real estate in controversy, up on an execution in their favor, regularly issued and levied, are en titel to retain the purchase money, and apply the same as a credit upon their judgment, unless some other subsisting, paramount claim is interposed.

The pretensions of the several applicants are to be considered.

FIR T: It seems agreed by all partics, that the judgment of Hafer is entitled to priority; and may, therefore, be laid out of the question.

SECOND: The judgment of the Miami Exporting Company being older than the judgment of Lytle and Avery, is entitled to a preference over the latter, unless that preference has been lost by the lapse of time, or laches of the party. It appears that the last execution issued by the Miami Exporting Compa ny, was on the 19th of June, 1823; the sale upon which was set aside at the August term following. The judgment was revived on the 24th of December, 1829, more than five years from the date of the last execution, and from the time the sale thereon was set aside. The sale, which produced the moneys in

controversy, was made on the 16th of November, 1829; and the motion to distribute the moneys was made and granted on the same day, and more than one month before the judgment of the Miami Exporting Company was revived. So far, therefore, as the Miami Exporting Company are concerned, the only question is, whether a senior judgment creditor, who has issued no exscation for more than five years, is entitled to mɔasys mile by a sile upon a junior judgment.

By the common law, a plaintiff could not have execution upon a judgment after a year and a day passed; but he was put to his action of debt upon thə judgment. (2 Inst. 469. Co. Litt. 290, 6.) But by St. W. 2, 13 Ed. 1, 45, he might have a scire facias quare executionem non, &c. If this statute was in force in this state, it is now abrogated by the statute, in which our legislature have undertaken to act upon the same subject matter; and they have, in effect, prevented the issuing of executions, either fi. fa. lev. fa. or vendi., by dec'aring, that after the expiration of five years, it shall be lawful to maintain an action of debt, or sue out a scire fucius upon judgments, &c.

At common law, if a fi. fa. were issued within the year and day, and nulla bona returned; or an elegit, and no execution thereon, there might be another fi. fa. elegit, or ca. sa, several years after, without scire facius, if continuance were entered from the first fi. fa. or elegit. (1 Inst. 230. 4 Inst. 271. Str. 100. 4 Com. Dig. 143.) This principle of the common law was also abolish. ed by our statute, which provides, that if five years intervene, after the date of one cxecution, before another is sued out, then debt or scire facias may be pros. ecuted, &c.

It is a well settled rule, that an execution is sued upon a dormant judgment, will be set aside on motion, and the goods or money levied, restored to the judg ment debtor; and sometimes with costs. (2 Wills. 82. Tidl's Prac. 935. 3 Caine's Rep. 270. 2 Saund. 71, 4.) The reason of this rule is, that after the year and day, the law presumes the judgment satisfied; and it will not permit the judgment creditor to be disturbed by an execution, without a scire facias, or other legal process.

This rule of the common law, and its cason, apply with equal, if not greater force, to cases under our statute, where five years have elapsel and no execution issued; or where five years clapse after the date of an execution, before an. other is sued out. But, it is urged that the injunction obtained by the Cincin nati manufacturing company, takes the case out of the operation of this rale. It was formerly held, that if the plaintiff had been tied up by injunction, for a year and day, he could not take out execution without a scire facias. (6 Mad. 233. 1 Str. 301. Bac. Ab. Execution. But this principle has been overruled, and it is now held, that he may afterwards sae an execution without scire fa. cias. (2 Burr. 660. 2 Saund. 72.)

In the present case, however, the injunction was dissolved, and the bill dis. missed in May, 1823; and more than five years having elapsed from that time, as well as from the date of the last execution, the party is in the same situation as if the injunction had never been allowed, or any execution issued.

It is also claimed, that the writ of error prosecuted in 1825, removes the nocessity of sueing out execution within five years from the date of the last execution.

If the defendant brings a writ of error, and the judgment is affirmed, the defendant in error may take out execution after the year, and without scire facias; because the writ of error was a supersedeas to the execution, and the defendant in error must wait until it be determined. (5 Rep. 98. Bae. Abg. Execution, 332. 2 Saund, 72.)

But by the express provisions of our statute, vol. 22, 70, no writ of error shal operate as a supersedeas, until bond and security are given. Notwithstanding the allowance of the writ of error, therefore, the Mi. Ex. Co. were at full liberty to sue out execution upon their judgment. No bond was executed, and of course there was no supersedeas to the execution.

Admitting then that the judgment of the Mi. Ex. Co. was originally valid, a point upon which we intimate no opinion, it was dormant, and no execution could have regularly issued upon it, at the time the order of appropriation was made in the court below. It necessarily follows, that the moneys in controversy cannot be applied to discharge such a judgment. The law presumes it to have been paid; and that presumption must be rebutted by an action, or a scire facias. Had an execution issued on the judgment of the Mi. Ex. Co. and the money made, the court, on motion, would set aside the execution, as irregular, and restore the money, to the judgment debtor. It would be an anomaly in the administration of justice, to apply money, raised upon a junior judgment, to the discharge of a senior judgment, when, if the same money had been raised upon the senior judgment, itself, the court would set aside the execution and award a restitution of the money.

THIRD. The claims of Davis and others, rest upon the same grounds as those of the Mi. Ex. Co. with one exception.

On the 11th of November, 1823, an execution was issued on the judgment of Davis and others, upon which a sale of the real estate was made by the sheriff, on the 15th of December, 1823; which sale, with the valuation, was set aside, by consent, on the 3d of September, 1829.

Whatever may have been the rights of Davis and others, on the 3d of September, 1829, as to the sale upon their execution, they were then lost, by their voluntary appearance in court, and consenting that their own purchase should be set aside. More than five years had then elapsed, since the date of their last execution, and they were bound to know, that they could issue no other execution without scire facias.

The law presumes that the sale was set aside, because the debt had been paid, or released; and if such be not the fact, the plaintiffs must attribute their loss, if any there be, to their own acts. It has been settled in this court, that if a levy be set aside, the parties stand in the same situation as if no levy had been made. (2 Ohio Rep. 400.) We see no reason why this principle should not be applied to a sale upon execution, voluntarily set aside by the parties: the execution upon which the sale had been made was functus officio; no subsequent steps could be taken to enforce the collection of the judgment, without a new execution; and no new execution co ld be sued out, because more than five years had elapsed since the date of the last execution.

The judgment of Davis and others, therefore, was entitled to no share of the money in controversy.

It is unnecessary to settle the question, whether the judgments of the Mi. E. Co. and of Davis and others, have lost their priority of lien upon the real estate, or whether the purchaser, under the judgment of Lytle and Avery, holds the lands, discharged of the prior incumbrance of those judgments. We are satisfied that the Mi. Ex. Co. and Davis and others, are not entitled to the monies in controversy; and if they have any other rigats, we leave them to be as serted, in such manner and form, as the parties may be advised.

Order reversed.

LEIBY v. PARKS, ET AL.

Whether a court of law erred in opinion, is not a proper subject of enquiry in a court of equity; nor whether a fan and impartial trial was had at law, unless the complainant shows clearly to the court, that he had a good defence at law, and was prevented from availing himself of it, by fraud, or pure accident, without any default in himself or his agents.

The power of administrators to sell the real estate of an intestate, is strictly a legal power; and if a sale be ma le, its validity is triable at law; and if, upou such trial, it is decided that the administrator had no power to make the sale, such power cannot be set up in equity.

If a person a ivance money to pay the debts of the intestate, he thereby acquires no lien upon the lands of the intestate in the bands of the heir.

An agreement to indemnify a warrantor against his covenant of warranty, can work no prejudice to the warrantee.

This was a bill in chancery, to which the defendants demurred generally. It was certified here, for decision, from the county of Hamilton.

The bill charged, that the complainant purchased from Culbertson Parks three different, but contiguous pieces of ground, now situate within the limits of the city of Cincinnati. The first in 1812, the second in 1813, and the third in 1818, for which he paid a full and fair consideration, and received regular conveyances, with covenants of warranty: That he entered into possession of the same, at the time of purchase; had made valuable improvements, and had ever since continued in possession; and that, at the time of the several purchases, he had no notice of any claim, or pretended claim, of any person whatever.

The bill further stated, that on the 10th day of December, 1810, the said Parks had purchased the tract of land, of which complainant's purchases were part, at a public sale, for a full and fair value, from the administrators of Israel Ludlow, deceased, under orders of the court of probate, a court of competent jurisdiction, which orders, at the time of purchase, were in full force, and unimpeachable.

It further charged, that in the month of May, 1804, when the first order was made for the sale of the real estate of Israel Ludlow, on the application of his administrators, the tract of land purchased by Parks, was without the limits of the city of Cincinnati, and wholly unimproved: That Ludlow, at the time of his death, in January, 1804, was largely insolvent: That the outstanding debts greatly exceeded the amount of personal assetts, and of the then value of the real estate: That the administrators, in consequence of the order for selling the real estate, made terms for delay with the creditors, by reason of which, the