#### *Jacob Roberts vs. Thomas Roberts.*

I. *The*complainant and the defendant, (brothers,) tools anote from E. *&*T. M’H. co-partners in trade, upon which a judgment was confessed, and fi. fa. issued, for the sum of 1,500 dollars, besides costs. Complainant was (from the proof,) entitled to one-fifth of the amount of the note and judgment, and defendant to four-fifths. The note was given to secure both complainant and defendant, as sureties for the said E..&T. M’H., againstloss-■es as their sureties. Both complainant and defendant had collected money from debts due to the firm of the M’H’s., besides that raised by the sale of the property of the M’H’s., (which did not satisfy the execution of complainant and defendant.) Held, that the interests of the parties were several in the execution, and that each party was bound to account for the sums each had collected, on his private account, of the firm of the M’H’s.; and that there was a distinction between the money collected on the execution, and that received by them otherwise.

*Heard before*Johnston, Chancellor.

Laurens,

*June Term,*1839.'

On the 1st of January, 1837, E. *&*T. MTIugh, partners in trade, executed their promissory note in the following form:

Fifteen days after date, we promise to pay Thomas Roberts and Jacob Roberts, or bearer, fifteen hundred dollars, for value received. January 1,1837.

E. *&*T. M’HIJGH.

Upon which the said E. *&*T. MTIugh suffered a judgment to be signed, (by confession,) on the 6th of February *50following, in favor of the said Thomas Roberts and Jacob Roberts, for the amount of said note, and $15. 37 1-2 cts. costs. The bill charges that the plaintiff, the said Jacob Roberts, and the defendant, the said Thomas Roberts, were, by contract between them, interested in the sum secured by said note and judgment in the following proportions, viz: that the said Jacob was entitled to one third, and the said Thomas to two thirds of the same. That a *ji. fa.*was lodged immediately, to enforce the collection of the amount secured by said judgment; which execution was levied, by the sheriff, on all the visible property of the said M’Hughs, which he sold for between six and seven hundred dollars. That at the sheriff’s sales, the defendant, Thomas Roberts, purchased a considerable portion of the property sold, and the plaintiff, Jacob Roberts, a small portion of the same. That the sheriff allowed Thomas to retain the amount of his purchases, and paid him the proceeds of the purchases made by other persons, with the exception of those made by Jacob ; at the same time crediting the execution with the whole amount of the sales; the effect of which was to transfer to Thomas the proceeds of the whole sales, except the trifling amount purchased by Jacob, which was ail that Jacob received out of- the property sold as aforesaid.

That the said M’Hughs transferred to Thomas their partnership books and notes, on which considerable sums were due, to be applied, as collected, to *the*said judgment ; and that he has collected large sums thereon; so that, between the amount thus received by him, and the amount received through the sheriff, as aforesaid, the bill charges his receipts have been equal to 1,200 dollars, being four-fifths instead of two-thirds of the amount to which he was entitled, by virtue of the said judgment.

That Thomas M’Hugh has left the State, insolvent, and E. M’Hugh being arrested by a *ca. sa.*under said judgment, has been discharged under the prison bounds act; and that the plaintiff, Jacob Roberts, is without remedy, except as against the said Thomas Roberts, the defendant, who holds the funds to which the said Jacob is entitled. The prayer of the bill is, that Jacob, the plaintiff, may be declared entitled to one-third (or 500 dollars) out of the amount secured by the judgment; and that Thomas, the defendant, *51be decreed to account with, him for the excess which he, Thomas, has received over his just share in said judgment, and pay him such sum as, with what he has already received, will make up his one-third of the judgment.

The defendant, Thomas, in his answer, denies that there was any agreement between him and Jacob, respecting the taking the note and judgment, or respecting their respective interests therein; and explicitly states that the interest of Jacob in the same was not one-third, but one-fifth. His account of the matter is, that he was about to take a note and confession of judgment from the said E. *&*T. IVPHugh, for 1,200 dollars, to indemnify him for losses sustained in consequence of his having become their surety; and that the M’Hughs (Jacob Roberts not being present, and having no knowledge of what was going to be done, and, as he believes, no knowledge of what was done, until afterwards,) suggested that they wished to indemnify the said Jacob to the amount of 300 dollars on a similar account, and requested him to include that amount, for the benefit of Jacob, in the note and judgment to be taken; which was accordingly done. He denies that he has received from the M’Hughs, or through the sheriff, or otherwise, more than his own just share of the judgment; and states that the assignment or transfer by the M’Hughs, of the books and notes, was made for his own exclusive benefit, and not for the general satisfaction of the judgment, as stated in the bill.

The controversy between these parties, who are brothers, I believe, although very bitter, is only for $200; and it is to be regretted that they have not been able to settle their difference amicably. As it is, they have a right to a legal decision. If there were nothing to rebut it, the general presumption would be, that the payees in the note, and plaintiffs in the judgment, are equally interested in them. But this presumption is rebutted by the bill itself, in which it is stated that their interests are unequal. The evidence, although somewhat vague in other respects, establishes conclusively that their interests cannot be equal.

Much circumstantial testimony has been given for the purpose of shewing the amount which Jacob lost by the M’Hughs, so as to establish, I suppose, the probability that *52as that loss was the consideration upon which liis name was introduced into the note and judgment, the sum intended to he secured to him thereby was co-extensive witli-the loss he had sustained. I do not perceive that, even if this proof was more precise than it is, it could have-much influence in the case. The proof is, that the name of Jacob was introduced into the transaction, not on his solicitation, but from mere kindness on the part of Thomas. The question, therefore, is not what indemnity Jacob needed', but what was the representation of the matter made to Thomas, and for what amount was his name inserted in the note and judgment. But if the losses of Jacob were to govern us in ascertaining his interest in these instruments, the proof is utterly too vague. It appears that he was surety for the M;Hughs to one or two persons, and that he had to pay to one of them about $436. There was a co-surety in the case, and how much he received from him, by way of reimbursement, does not appear. The amount-of his suretyships to other persons, or how much he lost thereby, the evidence does not ascertain. It appears, however, by the evidence, that he received from the McHughs, by a sale of cotton which he made for them, a sum of money, which went to diminish the loss which he is proved’ to have sustained as their surety. Under these circumstances, I- was gratified when E. MTIugh was offered as a witness for Thomas, expecting of course, that as he must-have a full knowledge of the matter, his testimony would enable the Court to decide it with entire satisfaction.

His general character was, however, most successfully attacked; and yet I cannot help believing him, on the inherent probability of what he stated. He gave a clear and minute statement of the respective losses of Thomas and Jacob, in consequence of their engagements for his firm.. The amount of the engagements, and the mode in whiclx they resulted in the losses, (on the part of Thomas, about-$1,200, and on the part of Jacob, about $300,) were detailed by him in a manner so natural, and so consistent with the facts deposed by all the other witnesses, that it appears to me, let his character be what it may, his testimony ought to have the effect of deciding a question left so very uncertain by the other proofs in the case. I cannot come to any other conclusion,

*53It is decreed that the plaintiff, Jacob Roberts, is- interested in the note and judgment, to the extent of one-fifth, and the defendant, Thomas Roberts, to the extent of four-fifths. That they are entitled to participate in that ratio in the monies raised by process of law, under that judgment: but that each is entitled to such sums, as they have received, or may receive otherwise, until their respective proportion» in said note and judgment are satisfied. Let the parties account before the commissioner accordingly; and let the commissioner report the amounts received by the respective parties, in each of the ways aforesaid, distinguishing how much has been received in one way, and how much-in the other ; and setting forth what sum, if any, either party should contribute to the other. The question of costs to await the coming in of the report.

From this decree, an appeal was taken to the Appeal Court. The grounds of the appeal will be sufficiently understood from the Chancellor’s opinion.

Curia, *per*Johnston, Chancellor.

— The decree on the merits of this case is objected to, .because it draws a distinction between the money collected under the execution, and that which each party collected on his private account. But the Court is of opinion that the distinction is not only just, but legal. The bill itself, as well as the proof, shews that the interests, of the parties, in the execution are several: and indeed, the controversy between them was not whether their interests were joint, but what was the separate interest of each. The case made out, was that Thomas Roberts, being about to take a confession from the McHughs for 1200 dollars, in order to secure himself, kindly consented, at the suggestion of the debtors, to include in it 300 dollars, for the ‘ benefit of his absent brother. Except that costs were saved by this procedure,, it is as if two co-temporaneous judgments and executions had been signed. The sheriff would, in that case, have distributed the proceeds of any sale made under these executions, rateably between them. This is the principle upon which the decree, (in which the interest of the parties are regarded as several and unequal,) directed the *54application of the money which was raised by process of law.

But the Court cannot perceive how this principle can be applied to the money received by each party on his own account. Regarding the judgment as including several interests, it appears that each party would have the same right to receive and retain money in satisfaction of his debt, as if each had, in fact, held a separate judgment; a right which cannot be doubted. The report of the commissioner upon the account, it is conceded, conformed to the directions given by the Court, and as no error is found in the directions, the confirmation of the report must, of course, be sustained. ,

The motion is refused.

J. *JOHNSTON.*

*We*concur.

Wm. Harper, Ben. F. Bunkin.

Note. — 'The names of the Counsel concerned in this case, do not appear upon the manuscript furnished the Reporter, and this will account for their omission.