#### SETH SPEIGHT vs. JESSE SPEIGHT et. al.

If an answer be directly responsive to the material facts charged in the bill, and be clear, precise and positive in its denial of them, and be not disproved or discredited in this part by what is found in any other part of it, the testimony of a single witness, where there is ho circumstance to corroborate it, will not be sufficient to entitle the plaintiff to a decree; especially if the testimony of such witness be equivocal or evasive.

Thomas Speight became indebted by note to one Harper, in the sum of $400, and Jesse Speight and Lemon Speight also executed the no,te as the sureties of Thomas. In 1829, Harper brought an action at law on the note, and obtained judgment; and, thereupon, Thomas Speight filed his bill in ■the Court of Equity, to be relieved against the note and judgment, upon certain equitable grounds therein stated, and obtained the usual preliminary injunction. For the prosecution *281of that suit, the present plaintiff, Seth Speight, was the surety of Thomas Speight. While that cause was pending, Thomas Speight’s property was all sold under other executions, and he became insolvent. The injunction was dissolved, and the bill dismissed, and a decree taken against Thomas Speight and the present plaintiff for the debt. A question, in that state of facts, arose between Seth Speight on the one hand, and Jesse Speight and Lemon Speight on the other, which of them was liable to pay the debt to Harper, or in what proportions it was to be paid by them respectively; and those parties agreed to refer that question to the arbitrament of a gentleman of the bar. Accordingly, a case was stated by the counsel of those parties respectively, on which an award was made against Seth Speight. The case, thus drawn up, was lost, and the particular contents did not appear. The award was made in May, 1833, and was in these words:

“ I have considered the statement submitted to me by Jesse Speight and Lemon Speight of the one part, and Seth Speight of the other, examined all the papers accompanying it, and reflected on the principles of equity on which the controversy ought to be decided. It is not alleged in the statement that the bill of injunction, filed by Thomas Speight, was at the request or with the concurrence of Jesse Speight or Lemon Speight; nor that Seth Speight became bound as security for Thomas, at the instance or request of Jesse or Lemon. As these facts are in the highest degree material, I must presume that they do not exist, or that they would have been stated. My opinion, therefore, is predicated upon the assumption that they do not exist.”

“ I consider the rule in equity to be well established, that if any person enters into an arrangement with the creditor, in order to prevent or postpone the collection of the debt from the principal debtor, by which arrangement he renders himself liable to the creditor for such debt, the original sureties for the debtor have a right, on discharging the debt, to be substituted in the place of the creditor, and to resort to the security thus given to the creditor for their re-imbursement. Believing this to be the established rule, I am obliged to decide, that, in equity. Seth Speight is, as between him and Jesse and *282Lemon Speight, bound for the payment of the entire debt in question.”

Seth Speight filed this bill against Thomas Speight, Jesse Speight and Lemon Speight’s administrator, in September, arL(3, amongst other things, alleged therein that since the award was made he had been informed, by Thomas Speight, that Jesse Speight, before the said Thomas applied for the injunction ¡against said Harper, not only consented, but strenuously urged and advised, the said Thomas to apply for and obtain the same; which statement of said Thomas the plaintiff charged to be true, and that a knowledge of the same was withheld from the plaintiff, by said Jesse, and also from the arbitrator, to whom, in good faith, it ought to have been communicated. The bill thereupon insisted, that as the material facts had been suppressed and withheld from the plaintiff’s knowledge, the defendant, Jesse, could not, in .equity, derive any benefit from the award. The bill prayed that Jesse Speight might, therefore, indemnify the plaintiff and refund to him the whole or such part of the said debt as in equity he ought.

The answer of Jesse Speight admitted most of the facts set forth in the bill, and, among them, that Thomas Speight had become insolvent. But, it denied that he was insolvent, when the judgment at law was obtained, and affirmed that the debt could then have been levied of his estate, if the plaintiff had not interposed and become his surety for the injunction. The answer then insisted on the award, as a bar to the relief sought; and “ denied positively that he, this defendant, ever advised or urged Thomas Speight to file the bill of injunction, or that he ever consented, directly or indirectly, that said Thomas should file said bill: On the contrary, the said Thomas determined on his course without consultation with this defendant; and he denied that he knew that Thomas Speight was about to procure an injunction, or that he ever assented to his procuring it.”

To the answer, replication was taken; and the plaintiff, under an order, took the deposition of Thomas Speight, the principal debtor, and one of the defendants. He says, t! I talked with Jesse and Lemon Speight on the subject, before. *283I filed *the*bill against Harper, and told them I should file one, if it could be done; and they said it was nothing amiss, if it could be done, to condemn the note to pay Harper’s own debt.” To the interrogatory of the plaintiff, “did they object to the bill being filed, or do you think they were consenting to its being done”? the witness replied, “ they did not object, and I have no reason to think they were opposed to it.” The plaintiff offered other evidence as to the period when Thomas Speight became insolvent; but Thomas Speight was the only witness to the point to which his testimony, just given, related. On the hearing, the counsel for the defendant, Jesse Speight, contended that there could not be a decree for the plaintiff upon the testimony of that single witness.

„71 ,, an award byr'ayn Triii-bJT'Snnuil- «>, Because a fact which existed, was °"e ,of the pni*t¡es to the arbiira- ^ opposite , in vour^the'a-di-rtaken to thole case, jh®,aas‘ nPon greed by

*J. H. Bryan*for the plaintiff.

*Badger*for the defendants.

RuffiN, Chief Justice,

after stating the case as above, proceeded: In the opinion of the Court, the objection taken at the bar is. in this case, well founded. It might, indeed, admit of much consideration, whether an award fairly made by an arbitrator, could be annulled, because a fact, which existed, was not communicated by one of the parties to the arbitrator or to the opposite party, when the person, in whose fa- , T , 1 , , , , vour the award is, had not undertaken to state the whole case, but the award was made upon a case agreed by counsel. Assuming, however, that silence upon such an occasion *1** will deprive the party of the benefit of the award, as having been obtained by fraud on the arbitrator, the plaintiff must here fail, for want of proof of the fraud. It consists in cealing the facts that the defendant, Jesse Speight, had ad ed, concurred in and urged the filing of the bill by Thomas Speight. The fact of such urgency, concurrence, or and. indeed, all knowledge that Thomas intended to file a bill, is directly and unequivocally denied; aud much more, therefore, is the alleged fraudulent suppression denied. The testimony of the witness is by no means clear and It is quite vague and unsatisfactory. It amounts to hardly more than this, that the sureties, to whom he mentioned *284purpose, would not oppose it: they said, *“*it was nothing a* TMss — ^ not 0kjec,;-” Blit they did not assent, or say or do any thing that could be construed into concurrence, or 'more ^lan mere acquiescence in their principal’s pursuing his own course in defending himself. If a single witness could, therefore, overrule an. answer, it could not be one making such a statement, in contradiction of the answer, as that before us. But the answer is not, like the deposition, equivocal; nor is it evasive; but it is clear, precise and positive in its denial, and directly responsive to the bill on this point. It is not disproved or discredited in this part, by what is found-in any other part of it; and there is no circumstance in the case to corroborate the representation of the single witness, even in its present unsatisfactory shape. The settled rule in this Court is, that the answer must prevail in such a case.

The bill must, therefore, be dismissed with costs to the defendants, Jesse and the administrator of Lemon Speight.

Per Curiam. Bill dismissed.