#### WM. H. A. KEARNEY *against*A. HARRELL AND OTHERS.

Where A, 33, and 0, signed a bond and 0 paid off a judgment rendered thereon and took an assignment of it to his own use and sought to collect the whole of it of 33, whom he alleged to bé a co-principal with A, who was insolvent, and 33 filed a bill to restrain 0 from collecting more than a proportional part of said judgment, on the ground that he, 33, was only a co-surety with 0, and 0 confessed in his answer that he signed the bond without any request by B, or any communication with him respecting it, but upon the assurance of A, that B was a co-principal, it was *Held,*that the *onus*devolved upon 0 to prove that B was a eo-principal.

Where a cause is set for hearing upon bill, answer, replication, and proofs, and the evidence fails as to a matter essential to the equity of the plaintiff or to the defence relied on, it is not in the course of the Court to direct an en-quiry by the master, nor to direct an issue to be tried at law.

Cause removed from the Court of Equity of Warren County.

The bill is filed to obtain an injunction to restrain the defendant from collecting the full amount of a judgment, and alleges the following facts as a ground for equitable interference.

The defendant, Abner Harrell, at November Term, 1855, of Warren County Court, obtained a judgment upon a bond payable to him as guardian of certain children, against one Albert Jones as principal, and the plaintiff, Kearney, and one Perry Carter, who is also a defendant, as sureties; that the said Albert Jones, at the time of the rendition of this judgment, was entirely insolvent, and is still so; that Carter, a surety, has since caused .the judgment to be assigned to a third person for his use, and, in order to avoid paying his proportional part of said debt, has caused a writ of *fi. fa.*to issue upon this judgment against the plaintiff, and has directed the Sheriff to collect the whole amount from him; that this writ of *fi. fa.*was issued in the name of Harrell, but was in. reality for the use and benefit of the said Carter, who has obtained the control, and the bill prays an injunction to restrain him from collecting more than a proportional part of the amount of the judgment, i. e. one-half.

The defendant, Carter denies, in his answer, that the bond upon which the judgment was obtained, was executed by Jones *200as principal and himself and plaintiff as sureties, or that any such relations existed between them as to make them co-sureties, but on the contrary gives the following as the true state of the facts.

That the defendant, Jones and the plaintiff Kearney, in the year 18- — ■, contracted with certain persons in the town of Mur-freesboro’, to erect a large brick building to be used as a female academy; that the direction of the work'was left entirely to Jones who resided in the town, Kearney only occasionally visiting the place while the work was going on, but continuing to furnish hands and in other ways contributing to the prosecution of the work; that Jones among other debts contracted in this joint undertaking of himself and plaintiff, hired certain negroes from the defendant, Abner Harrell, until their hires amounted to about five hundred dollars; and he, Jones, then called upon the defendant Carter with the bond referred to, with the signature and seal of Kearney, and requested him to sign it as surety, saying that it was to pay for the hire of slaves that had worked at the college building, in which himself and Kearney were concerned and to obtain money to pay off other debts contracted at that work; that Kearney and himself were principals, and that in becoming ■surety for them both, he would incur no risk. Upon these representations, being satisfied of the responsibility of Kear-ney, he agreed to become a surety, and executed the bond accordingly, subscribing it after both Jones and Kearney.

The following is a copy of this bond:

“$1,000. Two days after date, we promise to pay Abner Harrell, guardian for Mary E. Harrell and James Abner Harrell, the just and full sum of one thousand dollars, it being ■for value of him received. Given under our hands and seals this 1st day of January, 1855.

Witness, [seal.]

*[seal.]*

Wm. H. A. Kearney, *[seal.']*

A. G. JoNes, *[seal.]*

Perry Carter, *[seal.]”*

*201The plaintiff offered the deposition of one *P. W. Motley.*who deposed that A. G. Jones, before this, handed him a bond for $1,000 to carry to Abner Harrell, signed first by A. G. Jones and then by Ivearney and Perry Carter, but he did not know which of the latter two signed it first; that Jones told him to get the money for the bond ; that he carried the bond to Harrell, who refused ijp receive it, because the names of the obligors were not written opposite the seals on the said bond; that he then carried the bond back to Jones who gave him the bond above recited, and asked him ifco carry it to Win. II. A. Kearney for his signature; that he carried it to him and he put his signature to the third seal on the bond, and that, at the time, there were only three seals to the bond; that he then carried the bond back to Jones, and did not know who was the principal and who the sureties to the first bond.

The defendant Carter filed, as an exhibit, ¡an account rendered by the firm of Little & Bridger against Jones & Kearney for lumber, and, at the foot of this account, was a receipt for $260, signed by J. D. Bridger, and reciting that the money had been paid by W. H. A. Kearney; and on the back of it is the certificate of Jones that the lumber was used in building the academy at Murfreesboro’.

At the coming in of the answer, the injunction previously granted in the case, was ordered to be dissolved, and the bill, being continued, as an original, on replication and proofs being taken, the cause was set down for heaving, and sent to this Court.

*liatón*and *B. F.*Moore, for tlae plaintiff.

*Batchelor,*for the defendant.

Peaesokt, C. J.

The plaintiff alleges, that he executed the bond on which the judgment, in question, was obtained as a surety of the defendant, Jones, and complains that Carter, who also executed the bond as a surety of Jones, having obtained control of the judgment by taking an assignment to his use, is about to collect the wdrole of it from him. Carter does *202not aver that he executed the bond nf the request of Kearney, but says he did so, under the. belief that he was becoming the surety of both Kearney and Jones, because Jones told him that such was the fact, and that the. bond was givc-n to Harrell, in part, to secure the payment of the hire of certain slave's, who had worked on the female academy at Murfreesborongh, and in part for money, to pay debts contracted for the purposes of the building, and that he and Kearney were copart-ners in the contract for erecting the building.

Upon the coming in of the answer, the injunction is dissolved and replication taken. The plaintiff files as an exhibit the bond, by which it appeals that it was drawn with three seals, and that Kearney had affixed his signature to the *last seal,*and Jones and Carter had then put their names underneath with *new seals.*He also oilers the deposition of one Motley, who deposes that Jones handed him a bond for §1000, signed first by Jones, and then by Kearney and Carter, and directed him to hand it to Harrell and get the money for it. Harrell refused to accept it, because the names were not written opposite the seals. lie returned it to Jones, who afterwards handed him the draft of the bond, above referred to, for $1000, and directed him to carry it to Kearney for his sigua-ture. Kearney put his name to the *third*seal, and deponent handed it to Jones.

The defendant, Carter, files as an exhibit, an account rendered by one Little and Bridger against Jones and Kearney, for a quantity of lumber, with an entry at the foot, “Received of *W.*A. Kearney $260, in part of the above. March 23d, 1856.” (Signed) Little & Bridger; on which the defendant, Jones, has written a certificate, that the articles were used in the building of the female academy, at Murfreesborongh. Upo» this evidence the cause is set for hearing, and transferred to this Court!!!

Upon the argument here, it being manifest that there was a defect of proof, the case was put not on its merits, but on. the effect of the answer, and on which side lies the burden of proof.

*203The counsel of Carter are mistaken in supposing that bis answer, pnt the plaintiff under the necessity of proving that he was *not ct,principal*in the bond. On the contrary, as Carter admits that he executed the bond, without any request on the part of Kearney, or any communication with him, in respect to it, and upon the mere request of Jones, and upon his representation of the matters connected with it, these affirmative matters, from which he insists that Kearney is, by implication, a principal, must be proven by him ; for otherwise, there is nothing, except the naked representation of Jones, (upon which it was his folly to rely) to support the imputation, that Kearney was a principal. The exhibit, Little and Bridgers’ account rendered, is not competent evidence. So, Carter has offered no evidence of the affirmative matter, alleged by him, as a ground for the inference that Kearney was a principal, and that he, Carter, has the rights of a surety in respect to him, notwithstanding his admission, that he executed the bond at’ the instance of Jones, audi without any request on the part of Kearney. Being reluctant to decide a case on the ground, that no evidence was offered, when the party apparently relied on the effect of his answer, we were, at first, inclined to have an enquiry, or to direct “ issues” to be tried at law ; but on reflection, andl after a full search for a precedent, which we were unable to find, our conclusion is, that when parties set a cause for hearing on bill, answer, replication, exhibits and proofs, and the evidence fails as to a matter, essential to the equity of the plaintiff, or to the defense relied by the defendant, and not simply to a matter *collateral*and secondary to the relief or defense, it is not in the course of the Court to direct an enquiry by the master, nor to direct an issue to bo tried at law, which is intended not to support a *want*of testimony, but to relieve the Court, where there is a *conflict*of testimony, nor to direct an action to be brought, which is done, when the matter is properly cognizable at law, but for some cause, the aid of this Court is invoked, not because of an original equity, but because of some impediment which would prevent or interfere with an action, at law. un*204less the parties were put under the direction of this Court, in (respect to the exercise of legal rights and defenses, arising ifroin accident, fraud, surprise, &c., of which, it is against conscience to take advantage.

It must be declared that the defendant, Carter, did not be-fóme the surety of the plaintiff at his instance or request, and 'that the defendant, Carter, has failed to prove that the plain’tiff was concerned, or bound as a principal in the bond, by ¡reason of any benefit which he was to have under it.

Pee. CuRiam, The plaimtiff will have a decree for the one ¡half of the amount, which he has been forced to pay, with interest and his ¡costs.