Newhouse, et al. v. Miles, et al. has been the invariable practice in such cases, since the passage of the act of 1811. Contemporanea expositio fortissima est in lege. It results from what has been said, that the judgment of the County Court is affirmed. NEWHOUSE, ET AL. V. MILES, ET AL. 1. The objection to a bill that a person is improperly joined as a party complainant, is too late if taken for the first time at the hearing, and will then be disregarded, if it does not materially affect the propriety of the decree. Writ of Error to the Court of Chancery for the 1st Division. THE case made by the bill is this, viz: In 1841, Benjamin Newhouse and John S. Newhouse were indebted by note, as partners, to Sylvia Dale, in a considerable sum, to secure which Benjamin Newhouse executed a mortgage upon certain premises. Afterwards, a marriage being in contemplation between Miss Dale and John S. Newhouse, these parties entered into a marriage settlement, in which it is stipulated, that all the real and personal estate, choses in action, &c. of Miss Dale, should be conveyed to Charles Miles, to be held in trust for her sole and separate use, notwithstanding the contemplated marriage. In 1842, after the marriage of the parties just mentioned, the firm of Benjamin and John S. Newhouse was dissolved, and the former stipulated to pay all the debts of the firm. The note not being paid, this bill was filed by John S. Newhouse, his wife and Miles, the trustee, as complainants, against Benjamin Newhouse, the mortgagor, and one Hunt, who is charged to hold an older mortgage on the same premises. Answers were filed both by Hunt and Newhouse, the for Newhouse, et al. v. Miles, et al. mer setting out his mortgage, and conceding the truth of the matters stated in the bill; the latter admitting the execution of the note and mortgage, but insisting it was discharged by the marriage of Miss Dale with the other complainant, but denying all knowledge of the marriage settlement, and calling for proof, as well as insisting his stipulation to pay the debts of the firm, did not extend to this note, as that was then, in no sense, a debt of the firm. At the hearing, the objection was taken, that John S. Newhouse was improperly joined as a complainant in the bill. The Chancellor considered otherwise, and deeming the proof sufficient to sustain the allegations, decreed a sale of the mortgaged premises-Hunt's mortgage and the costs of suit to be first paid, and then that of Mrs. Newhouse, to her trustee, to her sole and separate use. Benjamin Newhouse prosecutes this writ of error, and here assigns, that John S. Newhouse was improperly joined as a complainant in the bill, and also that it contains no equity. J. A. CAMPBELL, for the plaintiff in error, insisted, that this was the bill of the husband as it is drawn. If intended as the bill of the wife, in relation to her separate estate, the husband is not a proper party. [Cox v. Murph, 2 Dev. & Bat. 257; Wake v. Parker, 2 Keen, 59; Owdon v. Campbell, 8 Simons, 551; Reeve v. Dalby, 2 Sim. & Stu. 464; Grant v. Van Schoonhover, 9 Paige, 255.] G. N. STEWART, contra. GOLDTHWAITE, J.-If it is conceded the husband, in the circumstances of this case, is not a proper party complainant, yet the objection taken for the first time, at the hearing, is too late, and will be disregarded if it does not materially affect the propriety of the decree. [Story's Eq. Pl. 417, § 544; Watertown v. Cowen, 4 Paige, 510; Erwin v. Ferguson, 5 Ala. Rep. 158.] The objection might possibly have been of some weight, if the decree had admitted the husband as a party in interest, so as to have given him the control of the fund; but instead of that, it directs the money, when James v. Auld & Spear. received, to be paid over to the trustee of the wife, to her sole and separate use. A result precisely as it should be, if the husband was altogether omitted, or made a party defendant. Decree affirmed. JAMES v. AULD & SPEAR. 1. A judgment cannot be obtained against the sureties of a constable, by motion, for his default, after his death. In such a case, resort must be had to the common law for redress. Error to the County Court of Mobile. Fox, for defendant in error, submitted the cause ORMOND, J.-This was a motion against the sureties of a constable, for the failure of their principal, to return an execution, he being dead at the time the motion was made. The justice rendered judgment against the sureties, from which they appealed to the County Court, where the judgment was reversed. From that judgment this writ is prosecuted. In Orr v. Duval, 1 Ala. Rep. 262, it was held, that no judgment could be rendered on motion against the sureties of a sheriff, in the predicament of these. The act giving this summary proceeding against the sureties of a constable, does not differ from the statute authorizing a judgment on motion against a sheriff and his sureties. The act of the 9th January, 1841, which was passed to remedy the defect in the existing law, pointed out in the case of Orr v. Duval, does not reach this case, as by its term it is confined to the sureties of sheriffs, who may be proceeded against, although their principal is not notified. The on Lyon v. Bolling, et al. ly act authorizing a motion in such a case as this, is the act of 1824, (Clay's Dig. 219, § 87,) and that, by its express terms, requires the judgment to be rendered against the constable and his sureties, and when that is impracticable, as in this case, the statute remedy cannot be enforced, and the party aggrieved must resort to the common law for redress. Let the judgment be affirmed. LYON v. BOLLING, ET AL. 1. Where several judgments against the maker and indorser of a promissory note are recovered by the same plaintiff, the payment of the judgment against the latter, does not annul that against the maker; but the indorser may be substitnted to it in equity, and have the advantage which it there affords for his reimbursement. If an execution has been issued and returned "no property found," he may go into Chancery to subject the equitable estate of the maker to the satisfaction of the judgment; or he may resort to equity to cause conveyances of real property to be set aside, which the defendant has made, or caused to be made in fraud of his creditors. Writ of Error to the Court of Chancery sitting at Mobile. THE plaintiff in error, who was complainant below, alledges in his bill, that the defendant, Thomas R. Bolling, on the 1st day of November, 1836, made his three several promissory notes, one at six, another at nine, and a third at months after date; each for the sum of $1250, and all payable to the complainant. These notes were indorsed by the complainant, for the accommodation of the maker, and at his special instance and request; and thereupon the defendant passed them to Diego McVoy, in payment of the rent of the Mobile Hotel for one year. When the notes became due and payable, the maker failed to provide for their payment: whereupon the first and sec 9 463 0134 535 Lyon v. Bolling, et al. ond notes were put in suit by the indorsee, who obtained judgments in the Circuit Court of Mobile county, against Bolling, as the maker, and the complainant as indorser; both of which judgments against the indorser were satisfied by the complainant, after a return of "no property found,” upon executions against the defendant's estate. The third note was paid by the complainant without suit, and is now in his possession. All which several sums thus paid, amounted, at the time of filing the bill in this cause, to the sum of $4332 83 with interest, &c. It is also alledged, that the defendant purchased of Audley H. Gazzam, a tract of land, particularly described in the bill, on which he now lives, situated in Mobile county, that the defendant has made full payment for the same, and caused a deed to be executed by Gazzam, on the 10th December, 1842, to his son, Thomas T. Bolling, instead of himself, who was the real purchaser. That at the time the purchase money was paid, the grantee in the deed was an infant, had no estate, either by inheritance or otherwise, distinct from his father, and consequently the means of purchase were all provided by the defendant; that defendant took possession of the premises, shortly after his purchase, and has occupied them ever since-making extensive and valuable improvements thereon. Complainant explicitly charges, that in causing the deed to be executed by Gazzam to Thomas T. Bolling, the defendant intended to hinder and delay his creditors; and that the transaction was a direct fraud upon the complainant, to whom the defendant was, and still is, largely indebted. The defendant and his son refuse to give up the land to be sold for the payment of the several sums advanced by the complainant for the former, as above stated, although the defendant has no other property within the complainant's knowledge, "out of which he can make the amount of the said judgment and notes." The bill prays process of subpana against Thomas R. and Thomas T. Bolling, and Audley H. Gazzam, that each of them may answer the same; that the deed from Gazzam to Thomas T. Bolling may be delivered up, cancelled and set aside, and the land therein described, with its appurtenances, |