Jones v. Underwood ( 1859 )

Manly, J.

This case has received from the Court the consideration, which its importance, in a pecuniary point of view, merits, and our conclusion is against the plaintiff’s right to relief in this Court.

The equity of the bill rests upon the allegation, that the complainant was surety for the defendant’s intestate upon a certain note to the bank of Salisbury.

In the first place, it is to be remarked, the contents of the note show the contrary, and it is but reasonable to require of complainant to take the laboring oar in explaining this presumption against him.

There were present at the transaction, according to plaintiff’s testimony, the parties, Benj. W. Simmons and Turner Ingram and wife. Ingram and wife depose that the note was not read, but complainant was told, by both Locke and Simmons, that it was like a former note, in which Locke was principal and Jones surety.

On the other hand, Simmons, who was called upon, to be the subscribing witness to the note, says, that it was read repeatedly; that Jones’ objections to signing it, in the condition it was, were discussed and finally abondoned by him, and that he understood perfectly, he was becoming surety for Kendall and not for Locke.

Added to this presumptive and direct proof against the allegation of the bill, is the institution of a suit, at law, by Jones against Locke’s administrator for contribution, as from a co-surety, which has much force, as a matter of record, against the equity of the bill.

The other proofs, as that of Waller, upon the subject of Locke’s admission, and of divers witnesses, as to the character of Simmons, we regard as of little weight.

Upon the whole, we think the preponderance of testimony is decidedly against the equity of the bill, and it is, therefore, dismissed with costs.

Per Curiam, Bill dismissed.