Page:Federal Reporter, 1st Series, Volume 4.djvu/624

610 FEDSBAL BEPOBTEB. �These securities plead that state of facts, and say that that is an adjudication which declares and fixes the amount which they are entitled to pay ; that they have a lien for that amount, and no more ; and that the bank, the plaintiff in this case, being a party before the probate court, is bound by that finding, and is estopped from demanding anything further from these defendants, the sureties. �The validity of that pka depends upon the peculiar lawa of Ohio. It is claimed by the bank that it is not an estop- pel, because there was no issue made up between the bank and the other parties ; that it was a controversy between the administra trix and the sureties upon the note ; and that they connot be estopped, because they made no issue, and were not, in fact, necessary parties to that proceeding. Independ- ently of the statute of Ohio, conferring jurisdiction on the probate court, the proceeding must have been one in equity. Mrs. Waring would have had a right to have gone into a court of charcery and stated to the court that a mortgage had been executed in favor of these parties to indemnify them against the paymeut of the $2,000 note; that ail but $748.49 had been paid, and that their lien, theref ore, was only against the payment of this balance, and that she wanted the equities and rights of these parties adjusted; and she could have brought in the bank before the court, and the court could have taken, and ought to have taken, jurisdiction and cogni- zance of the matter, and proceeded to hear and determine and fix and adjudicate the balance due upon the note, and give a decree to that effect which would have been binding upon the parties. �This idea that, because they did not make an issue, they are not bound by that adjudication, is not in our opinion maintainable. Any one of a number of distributees may file a bill against an administrator for an account. He is bound to make ail the distributees parties. If they do not join him in the prosecution of the suit, he must make them defendants. They are in that way brought before the court. They niay interpose no defence, and possibly make no answer or take no active part in the proceedings; and on an issue made ����