#### JOHN M. LONG *against*JOHN J. CROSS AND WIFE MARY.

Where C., being indebted to his sister,.B., left the State, having made a conveyance of certain of his property to the plaintiff, and the latter agreed that if he got the property, or enough of it to satisfy his sister’s debt, he would save it for her, and gave his bond for the amount thereof, and at the same time she gave him a written agreement to i&turn the said bond if he did not succeed in getting the amount of said note from C; on a bill for an injunction to restrain the collection of the bond, it was *Held*necessary that the plaintiff should aver that he had diligently endeavored to collect said amount from 0. and had failed to do so, and that it was not sufficient for him to allege that he had failed to get the property, but that he should state how and why he had so failed.

Appeal from an interlocutory order of tbe Court of Equity, of' Cabarrus county, dissolving an injunction.

The bill sets out, that on the 17th of January, 1853, the-plaintiff executed a bond for the sum of $180, payable to the defendant, Mary Cross, then Mary Henderson ; that this bond was for a debt owing the said Mary by one D. F. Long; and was executed under the following circumstances : One A. J. York of the town of Concord, stated to the plaintiff, at the time of the date of the above bond, that it was rumored that the creditors of L). F. Long were about to levy, or had levied, upon his property. The said L>. F. Long was at that time residing in the town of Salisbury, editing a newspaper, of which he was proprietor. York also, stated to the plaintiff, that L>. E. Long was indebted to the merchantile firm of which he (York) was a member, and desired plaintiff to secure the debt for the firm, it he could. The plaintiff stated to York, that he had purchased the printing press, material and all fixtures appertaining to the same, formerly owned by the said D. E. Long, and that if plaintiff got the press, material, &c., and they turned out as he supposed they would, in that event he should owe D. E. Long enough to satisfy the claim of the firm, and probably more than enough for that purpose j that at the request of York, plaintiff executed his bond for this claim with the understanding that if he did not get the press, material, *324&c., then the bond was to be returned. York then in formed plaintiff that D. E. Long was indebted to Mary Henderson in the sum of $180, and requested him to secure this debt for her. Plaintiff then executed his bond for the sum alleged to be due her, and delivered the same to York, who agreed to relate to her the circumstances above set out, and it was agreed between tjjem that if she received the bond, it should be on the same terms as York had accepted his. York then delivered the bond to Mary Henderson, and took from her the following receipt : “ Received of J. M. Long a note of $180 for L>. F. Long’s account, and if J. M. Long does not succeed in getting the amount of said note from D. F. Long, this note is to be returned to J. M. Long.

(Dated) Jan. 17th, 1853. (Signed) MaRy ITeNdeesoN.”

The bill further states, that D. F. Long left this State and went to Louisiana and has never returned, and that attachments were levied upon the printing press, material, &c., in the month of January or February 1853, and on all the property which D. F. Long was known to possess, and it was all sold by the creditors, and of this fact, both York and the said Mary Henderson were both informed, and the plaintiff got none of the property. The bill further states, that sfter the said levies and sales, York returned the bond executed to the firm, and that the said Mary Henderson having intermarried with the defendant Cross, plaintiff demanded of them the bond executed to Mary Henderson, which they refused to return, but commenced suit thereon and have obtained a judgment and sued out execution on the same, which execution is now in the hands of the sheriff of Cabarrus. The bill prays for an injunction to restrain the enforcement of the judgment and for the delivery up of the bond in question.

The defendants answered fully, but since the decision of the court is predicated on the plaintiff’s bill, it is not, necessary to set out the answer.

Upon the coming in of the answer, defendant moved to dissolve the injunction, which motion was allowed. Plaintiff appealed to this court.

*325*Wilson*and Jones, for plaintiff.

*Barringer*and Fowle, for defendant.

PbaesoN, O. J.

To entitle the plaintiff to have his bond for $180, mentioned in the pleadings, returned to him, according to the terms of the agreement signed by the defendant, Mary, it was necessary for him to use all proper diligence in endeavoring to get the amount of the note from D. F. Long.

The equity which the bill seeks to enforce, is to have the agreement performed, and in the meantime, as ancillary thereto, to have the collection of the bond enjoined until he can establish his primary equity. It is clear, that in order to make out this equity, it was incumbent on the plaintiff' to aver in the bill, and prove that he *had fused proper*diligence, and did not “succeed in getting the amount of the note from D. F. Long.” The bill is fatally defective, in not making this averment. It is true the plaintiff avers he has not got the money from D. F. Long, but how he happened to fail, and what efforts were made by him to get tire money, if lie made any, are not set out, in order to show that he had used the degree of diligence imposed on him by the agreement.

The bond and agreement bear date *11th January,*1853.— The plaintiff alleges, that as an inducement to the arrangement, which took place between him and one York, and as preliminary to the execution of the bond and agreement in question, “he told York, that he had purchased the printing press, material, and all the fixtures thereunto belonging, that D. F. Long owned, and if your orator got said press, material and fixtures, and it turned out as it had been represented to him, he would owe the said D. F. Long enough to satisfy his claim, and probably something more.” He then alleges, that in *January*or February, 1853, the printing press, material and fixtures, and all the property that JD. F. Long wa» known to be possessed of, were levied upon by creditors under attachments and sold, by reason whereof he failed to get the amount of the bond from L>. F. Long. This account of the matter, so far from showing that he used proper diligence, *326convicts him of a want of diligence. If it was true, as he told York, that he had bought the printing press, material and fixtures, how did it happen that he permitted the property to be appropriated by creditors, whose levies were not made until February, the month after his alleged purchase? We say February, because the ambiguity made by his loose allegations, “January or February,” must of course be taken most strongly against him. And why was it, that having early intelligence that D. F. Long had absconded, he took no means to assert his title to the printing press, material and fixtures, and made no effort whatever, as far as appears by his own allegation, to secure the debt which he had undertaken to endeavor to get for the defendant, Mary.

For this defect in the bill, and want of equity by the plaintiff’s own showing, without adverting to the matter set up in answer, we concur with his Honor that the injunction ought to have been dissolved. There is no error. This will be certified.

Per CuriaM, Decretal order affirmed.