the note instead of the full face of it, and that Green the Ries, the sureties, only had a lien to that extent, and ordering a. sale of the property, and an appropriation of the money upon that ,basis, in a suit in which the bank was a party, and from which no appeal was taken, would be conclusive. The plea; is So good one, and the demurrer is overuled.
FA.RMERS' NA.T. BANK OF PORTSMOUTH, OHIO, t1. HANNAN,
Adm'r, etc.COi!ouit Oourt,D. Ohio. November 24,1880.) 1. CONTRACT- CONSTRUCTION-AcTION AT LAW-SUBROGATIO:'l'.-The stockholders of the Boone Mining & Manufacturing Company entered into the following agreement: "We "" "" hereby mutually agree with each other that they will each be responsible in mutual degree for all paper negotiated by the agent of the company for the use and benefit of the company; and should any paper so negotiated by the agent with the individual indorsement of one member be unprotected by the official agent by reason of want of fund", then, in such case, the parties to this agreement be each and severally bound for the payment of such paper in mutual proportions; and this agreement shall continue in force until the payment of all such claims have been made." In an action upon this contract by the holder of tho paper of such company, indorsed one of the parties to said agreement, against another one of the parties to said agreement, (both the corporation and the indorser being insolvent,) held, that this agreement was s contract between the shareholders, and that a holder of the paper of the company could not maintain an action at law against the parties thereto. His remedy was by a suit in equity to be substituted to the rights of the indorser.
!. PLEADING-BILL IN CHANCERy-ACTION AT LAw.-What allegations and circumstances show the petition to be for an action at law, and not a bill in chancery, decided.
On demurrer to the amended petition. The facts appear in the opinion. Coppock ct Coppock and .Stallo ct Kittredge, for plaintiff. E. A. Guthrie, for defendant·
· Reported by M.essl'S. Florien Giauque and J. O. Harper, of the CinclnDati bar.
I'ADHERS NAT. BANKOJr pORTsMOUTH, 0., V. HANNAN.
BAXTER, C. J., (orally.) . In this case the stockholders of the Boone Mining & Manufacturing Company, on the day of Fe1)ruary, 1871, entered into an agreell1ent between is as follows :
, "CINOINNATI, February 1871. "We, the undersigned, .of the c.apital stock of the Boone Mining & Manufacturing Company, hereby mutually agree with· each other. that they will each be responsible in degree for all paper negotiated by the agent the benefit of the company; .and company fOr,the use any paper so negotiated by the agent with his individual indorsement of one member be unprotected by the official agent by reason of want of hmds, then,' in such case, th'e. parties to this agreement be each and severally. bound for the pay:ment of s'uch paper in mutual proportions; and this agree:' . ment shall continue in force until the payment of all such claims have been made. "J. H. GUTHRIE."
"D. M. DAVIS. "J. & C. REAKERT. "J. W. G. STACKPOLE.It Beems tha.t one of the parties to this agreement and a shareholder of the corpQration indo:rsed a note of the COl'POration, and that note was negotiated for value to thtl plaintiff in the suit. The corporation and also this indorser have failed, and the holder of this paper seeks to have redress against one of the parties to this contract. We entertain the opinion that this contract between these shareholders is a contract between themselves; that it was not made to apply to this plaintiff, and that while he may go into a court of chancery, and have relief over against the several parties the rights which to the contract,--in other words, the party who indorsed the paper is entitled to, and be substituted to the rights of that party, and compel the payment
of their proportionate sbre of this note,-no snch right exists at law; that the holder of this paper cannot sue the parties to this contract at law. That brings up the question whether this is aD action at law or a bill in chancery. The petition begins: "The said plaintiff, the Farmers' National Bank of Portsmouth, Ohio, states to the court, by way of amended petition, that it is a natibnal banking association;" etc., etc., and goes on and states the facts, and it avers that by reason of these facts the defendant became indebted to the plaintiff, treating it as a paper upon which they could properly sue, and that they had direct legal rights under it and not equitable; and the cpnelusion is a prayer for judgment; and we notice, upon the original petition, that the plaintiff also took the same view of it, for he says: "Issue summons; civil action for money only; claimed, $5,320." We cannot come to any other conclusion than this is an action at law, and that an action at law upon this state of facts cannot be sustained. The demurrer will be sustained, and the petition dismissed.
(Oircuit Court, S. D. New York. --,1880.)
L BmrnoNB.-In the United States courts a summons must issue from the court, and be signed by the clerk, and sealed with the seal of the court. Peasles v. Haberstro, 15 Blatchf. 472. J. AMENDMENT.-In tbose courts a sum.mons cannot be amended by the . subsequent addition of the signature of the clerk, and the seal of the court. Peaale6 v. HabM'stro, BUpra.
Motion to Set Aside Summ6tls. Thomas J. Rn.9h, for plaintiffs. Stewart L. Woodford, Dist. Att'y, for defendant. BLATCHFORD, C. J. In an attempt has been made to commence a suit at common law, in this court, by serving