tensive with the object to be attained, that of superseding the judgment and securing a hearing in a higher court; and Hendrick asked Lindsay to see that whatever was required for this purpose should be done. To suppose any thing else is to suppose, that, wishing a certain thing effected, he restricted his agent in the use of the necessary means to accomplish it; for it might turn out that the judge would require two securities instead of one, or that Lindsay would not be accepted at all. Besides, it was immaterial to Hendrick whether the bond was signed by one or more persons, as he promised to give indemnity in the shape of a personal bond. It is true that this promise, in terms, was to Lindsay; but there is no reason why it, any more than the request, should be limited. If the request applied, as we think it did, to the procurement of a sufficient bond, the promise has a like extent. That Lindsay and Mansfield (to whom the correspondence was communicated) understood them to have this effect, is clear enough, from their signing the bond and staying the collection of the judgment. It is also equally clear, from the same fact, that Lindsay requested Mansfield to become one of the sureties, and that they both executed the bond, relying upon the undertaking of Hendrick to furnish the promised indemnity.

This was not done, although prompt application was made to him by letter from Lindsay, enclosing a draft of the indemnity bond. He neither signed nor returned it, nor did he afterwards correspond with any one on the subject. The draft recites that the supersedeas bond was executed by Lindsay and Mansfield, at the request of Hendrick. He was, therefore, informed of the interpretation which they put upon his request and promise; and, if it was wrong, he would at least, as an excuse for doing nothing, have availed himself of the occasion to repudiate the whole proceeding. As he did not do this, but retained, without objection, the draft, he in effect adopted that interpretation.

It is argued that Hendrick had no personal interest in the matter, and that, therefore, there was no consideration for his promise. But damage to the promisee constitutes as good a consideration as benefit to the promisor. In Pillan v. Van Mierop, 3 Burr. 1663, the court say, " Any damage or suspension

of a right, or possibility of a loss occasioned to the plaintiff by the promise of another, is a sufficient consideration for such promise, and will make it binding, although no actual benefit accrues to the party promising." This rule is sustained by a long series of adjudged cases.

It is also argued, as Mansfield's name does not appear in the letters of Hendrick, that he could not join in this action. This would be true, if the promise were under seal, requiring an action of debt or covenant; but the right of a party to maintain assumpsit on a promise not under seal, made to another for his benefit, although much controverted, is now the prevailing rule in this country. 1 Pars. Contr. (6th ed.) 467, and cases cited. If Hendrick engaged with Lindsay to indemnify the sureties furnished by him, and on the faith of this promise Lindsay and Mansfield executed the supersedeas bond, as we hold was the case here, then, if they suffered loss by reason of the breach of this contract, they are entitled to maintain this suit. That they did suffer loss, to the extent of Ballantine's judgment against the company, which was affirmed in this court, is the legal effect of the evidence of the only witness. on the point. He states directly that he and his co-plaintiff paid on the bond to Ballantine a certain amount of money, meaning, evidently, on the judgment to secure which the bond was given. It is true he says, "We did not pay cash," "we paid it in our notes; " but negotiable promissory notes are equivalent to the payment of money, if received by the creditor in satisfaction of the judgment, though such satisfaction be not entered on the record. The witness, through all his testimony, speaks of what he did as payment; and the true inference from the whole of it is, that Ballantine treated these notes as so much money paid him. There was no reason why he should not; for the bond was his only reliance, and the enforced collection of it would have occasioned expense and required time. It was far better for him, if the obligors were good (and this is the presumption), but unable to pay at once, to take time-notes in liquidation of the demand, than to bring suit on the bond. Besides, this is not an unusual way of closing up such a transaction, where the circumstances surrounding it appeal so strongly to the indulgence of the creditor.

On the whole, we are of the opinion that the court below did not mistake the legal effect of the uncontradicted testimony in the case, and that there was no error in instructing the jury to find for the plaintiffs. Judgment affirmed.

O'HARA ET AL. v. MACCONNELL ET AL., ASSIGNEES.

1. A decree in chancery will be reversed if rendered against a woman who is shown by the bill to be both a minor and feme covert, where no appearance by or for her has been entered, and no guardian ad litem appointed.

2. It is error to render a final decree for want of appearance at the first term after service of subpoena (Equity Rules, 18, 19), unless another rule-day has intervened.

8. Where the object is to divest a feme covert or minor of an interest in real estate, the title of which is in a trustee for her use, the trust being an active one, it is error to decree against her without making the trustee a party to the suit.

4. The making of the conveyance, as ordered by the decree, does not deprive the defendant of the right of appeal.

5. Neither a subsequent petition in the nature of a bill of review, nor any thing set up in the answer to such petition on which no action was had by the court, can prevent a party from appealing from the original decree.

APPEAL from the Circuit Court of the United States for the Western District of Pennsylvania.

The facts are stated in the opinion of the court. Submitted on printed arguments by Mr. J. W. Kirker for the appellants. No counsel appeared for the appellees.

MR. JUSTICE MILLER delivered the opinion of the court. Michael O'Hara was adjudged a bankrupt Dec. 9, 1867, and the appellees duly appointed assignees, to whom an assignment of his effects was made in due form. As such assignees, they filed in the Circuit Court for the Western District of Pennsylvania the bill in chancery on which the decree was rendered from which the present appeal is taken. The bill alleges that a conveyance of certain real estate made by said O'Hara and his wife, Frances, on the tenth day of July, 1866, to William Harrison and G. L. B. Fetterman, in trust for the use of the wife, was a fraud upon creditors, and prays that the deed be

declared void, and that O'Hara, his wife, and Barr, her guardian, be decreed to convey the land to complainants, that they may sell it for the benefit of O'Hara's creditors, free from the embarrassment created by said deed of trust.

The bill also alleges that Mrs. O'Hara is a minor, and that A. M. Barr is her legal guardian.

A subpoena was issued on the fifth day of April, 1869, and served on the 7th, on O'Hara, for himself and wife, and on Barr; and on the seventh day of May following, without appearance, and without answer by any defendant, the bill was amended, was taken as confessed, and a final decree rendered. This decree enjoined the defendants from setting up any claim to the land, and ordered all of them to convey and release the same to the assignees; and, in default of such conveyance within thirty days, Henry Sproul was appointed commissioner to do it in their name. A copy of this decree was served on the defendants May 10; and on the 14th of June the order was complied with, by a deed made by O'Hara, his wife, and Barr, which on its face purports to be in execution of the order, and for the consideration of one dollar. It will thus be seen, that within less than five weeks from the filing of the bill, and without any actual service of the writ or other notice on her, a decree was entered against a woman who was both a minor and a feme covert, without the appointment of a guardian ad litem, without any appearance by her or for her, depriving her of fourteen acres of land now within the limits of the city of Pittsburg. It is from this decree that she appeals.

By the thirteenth rule of practice of the courts of equity of the United States, as it stood when the subpoena in this case was served, a delivery of a copy to the husband was good, where husband and wife were sued together; but the rule was amended by this court in 1874, so as to require a personal service on each defendant, or by leaving a copy for each at his or her usual place of abode, with some adult member of the family. The service in the present case would not now be good, though it must be held to have been so at the time it was made.

It would be very strange if a decree obtained under such

circumstances could stand the test of a critical examination. We are of opinion that there are several errors sufficient to justify its reversal.

1. It was the duty of the court, where the bill on its face showed that the party whose interest was the principal one to be affected by the decree was both a minor and a feme covert, and that no one appeared for her in any manner to protect her interest, to have appointed a guardian ad litem for that purpose. If neither her husband nor he who is styled her guardian in the bill appeared to defend her interest, it was the more imperative that the court should have appointed some one to do it. There is no evidence in the record, except the statement in the bill, that Dr. Barr was her guardian. If he was not, then there was no one served with notice, whose legal duty it was to defend her. If he was her guardian, there is no evidence of the precise nature of his duties or power, as there are several classes of guardians. As to the particular property now in contest, she had a trustee, in whom the title was vested for her use, and whose duty it would have been to protect her interest in it; but, strangely enough, he was not made a party. It was, therefore, error in the court to proceed to a decree without appointing a guardian ad litem. 1 Daniell's Ch. Pr. 160, c. 4, sect. 9; Coughlin's Heirs v. Brents, 1 McLean, 175; Lessee of Nelson v. Moore, 3 id. 321.

2. If Mrs. O'Hara had been under no disability, it was error to have entered a final decree for want of appearance on the return day of the writ, or during that term.

"According to the practice of the English Chancery Court," says Mr. Justice Washington, in Pendleton v. Evans's Ex'r, 4 Wash. C. C. 337, "a bill cannot be taken pro confesso after service of subpoena, and even after appearance, until all the processes of contempt to a sequestration have been exhausted; after which the bill is taken pro confesso, and a decree passes which is absolute in the first instance." He then comments on the practice of the New York Chancery Court, which, instead of a proceeding in contempt, required a rule to answer to be served on the defendant; and, if this was not obeyed, the bill might be then taken pro confesso. He then adds: "The principle which governs the practice in both these courts is, that