#### MARK JONES *against*DAVIDSON A. UNDERWOOD, *Administrator of F.*LOCKE.

Where the plaintiff alleged that a certain note to a bank, purporting to- be the note of a another (since insolvent) with the plaintiff and defendant as sureties, was fraudulently misrepresented to him by the defendant, (he being illiterate) and he was made to believe that it was the defendant’s note, as principal, with such third person and himself as sureties, and that he signed it under that belief; the fact, that the plaintiff had sued the defendant, in a suit at law, for contribution as a co-surety and got judgment, taken in connection with the form of the note, and the pointed evidence of the subscribing witness, contradicting the whole equity, were *Held*to be preponderate against' two witnesses sustaining it.

Cause removed from the Court, of Equity of Stanly county.

On the 15tli of November, 1852, the following note was executed by the parties thereunto signed, viz :

*“*Salisbuet, 15th November, 1852.

*“*Ninety days after date, we, H. D. Kendall, as principal, and Francis Locke and Mark Jones, as securities, promise to pay D. A. Davis or order twelve hundred dollars, for value received, negotiable and payable at the Salisbury branch of the bank of Cape Fear.” Signed by

H. D. Kendall,

F. Locke, his

B. *W.*Simmons, witness *\*Mark X Jones,

as to M. Jones. j mark.

Kendall, the principal, named above, became insolvent after the note was made, and suit having been brought by the bank, judgment was obtained, and the whole amount collected off of Jones. ,

This suit is brought by the plaintiff, Jones, alleging that shortly before the signing of this note, he had signed another for $1300, payable to the same Bank, in which Francis Locke was principal, and IT. D. Kendall and himself sureties; that Locke came to him, in company with the subscribing witness, *B.*W. *Simmons, and*told him that the former note, which he *24produced, had been offered at the bant and rejected, because it was for too great a sum by one hundred dollars ; that he wished him to sign this, which was for a hundred dollars less than the other ; that the note was not read to him, but the plaintiff being illiterate, asked Locke the purport of the note, who assured him, that it was just like the other which he had signed ; that he asked Simmons, "when he was about to sign it, “ if it was just like the first,” who replied, that it was for a hundred dollars less. That having confidence in Locke, and believing his assurance, that he was becoming his surety in the said note, confirmed, as he understood it, by the reply of Simmons, he put his name to it; that he believed Kendall was then in failing circumstances, and he would not have gone his surety for any amount; that a fraud was practiced upon him in the transaction by the misrepresentation of Locke and the evasion of Simmons.

The prayer of the bill is, that the defendant, as the personal representative of Locke, (who has since died) may makegood to him the amount he has paid on account of said note. The bill states, by way of anticipation, that after the death of Locke, the plaintiff sued the defendant in a coxirt of law, alleging that he was the joint surety of Locke in the note aforesaid, and recovered judgment for one half of the sum paid by him in bank; that he thus brought suit, at law, because he was advised he could not recover the whole sum, but he avers that he has not taken out execution on that judgment, nor has he received any thing from Locke’s estate on that account.

The defendant answered, that he had no personal knowledge of the transaction, but upon the faith of what his intestate told him, and also from what he had*learned from Simmons, he was satisfied Jones knew well that he was signing as the surety of Kendall. He insists upon plaintiff’s own version of the transaction as alleged in the Court of law.

*JB. W. Simmons*testifies to the affair as stated in the answer. He says that the note was read to the plaintiff three, four, or five times; that Jones hesitated about signing as sure*25ty for Kendall, but was ■willing to sign for Locke ; that Locke told him Kendall was good, and that there was no danger in being his surety, and being thus persuaded, he did, with a full knowledge of its nature, execute the note in question, and he witnessed it. The witness further stated, that he understood from both parties, that Locke and Mark Jones had signed a note for II. D. Kendall, at 'the bank of Salisbury, for $1000, which had been sued on, and that the note, in question, was to take up and satisfy the said note in 'suit. The only other persons present at the transaction, were Turner Ingram and his wife. These two persons testified, that the note was not read to Jones, but he -was told, by both Locke and Simmons, that it was like the other note. There was evidence as to the character of Simmons, the most of which, pronounced his character good, but all said he was addicted to the excessive use of ardent spirits. Some of them said, however, that about the time of this transaction, he had been sober for a year or two.

Kelly, *Ashe*and Dcvrgan, for the plaintiff.

Osborne, for the defendant.

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 Sim*26mons, 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.